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West Virginia Among States Considering Digital Asset Laws

What happens to your digital information after you die? Depends on where you live.

Although much of the information users put online is public, things like emails, bank account numbers and messages are meant to stay private.

But what happens to that information after you die? That depends on where you live.

West Virginia is one of many states that does not have a clearly defined law on who can access digital assets after death. That even applies to emails and photos stored online that could have meaning to a family, said Delegate Stephen Skinner, D-Jefferson, who is an estate attorney.

"Let's say you've got photos stored online," he said. "Those are the kinds of things that could be incredibly meaningful to a family, but they might not have access to them. When you are legally looking at what someone can inherit, certainly it would include things like those photos. The challenge in crafting this kind of legislation is preserving the privacy of a person who has died, but at the same time respecting what they wanted to happen."

In past generations, people stored private messages, photos and other meaningful items in boxes, which were then inherited by children or grandchildren. But with the advent of social media, many of those items rarely exist in the physical form anymore. Pew Charitable Trusts issued a report last month, looking at proposed and existing legislation in other states designed to give families better access to digital assets.

"This is one of those issues where the law has not kept up with these new technologies and accounts that have been created," Pam Greenberg, a senior fellow at the National Conference of State Legislatures, told Pew. "I'm sure we'll see additional legislation in this area."

Although nine states -- including Virginia, Maryland and Pennsylvania -- have laws on the books, lobbyists for tech companies have spoken out against legislation, citing privacy for the deceased. A bill proposed in Delaware would supersede any terms of service an account holder would have agreed to upon creating the account.

"What happens when you die is an issue of concern to our members because they are custodians," Carl Szabo, policy counsel for NetChoice, a trade association that includes AOL and Yahoo, told Pew. "They are concerned about creating a safe and secure environment for our users."

Skinner said accessing someone's online accounts is something completely different than inheriting physical letters or photos that were stored in a closet or a bank safety deposit box.

"To be given access to someone's personal email is something altogether different and there may or may not be things in there that person intended to have inheritable," he said. "You can think about all sorts of social media and messaging where there are things that may or may not be very private. You can see the challenge of legislation dealing with that. As we all sort of understand that our lives are so preserved after death in the cloud, we all need to be responsive to it both in our wills and our laws."
Skinner acknowledged that terms of service for online accounts "move a lot faster than the law does," but he thinks West Virginia lawmakers should take time to observe what happens in other states with regard to these laws before taking any action.

"I think we . . . maybe see what other states are doing before we get out there and be too far afield of it," he said. "We are a state with an older population. We need to be a little careful about how we change our estate laws. I think it's something we should closely track."

Although broad federal legislation doesn't yet exist, the Fiduciary Access to Digital Assets Act could change that. Created by the Uniform Law Commission, it would allow executors, fiduciaries and trustees complete access to a deceased person's digital assets.

"This would supersede a site's current terms of service, forcing sites like Facebook, Twitter, LinkedIn and Google to grant access, which is something they don't currently allow," according to the Uniform Law Center. "The only way a person can prevent an executor (or "fiduciary") from accessing any or all of their online accounts is if they specifically state something to that effect in their will."

Skinner said because it can be hard to predict what accounts you will create in the future, people creating their wills should speak in generalities when it comes to outlining how they want their digital assets handled after death.

"It's a difficult thing to say five, 10, 20 or 40 years in advance what your accounts would be," he said. "I think in drafting your estate plan, account for it in a very general way and say 'I give my executor the right to access my social media accounts and I hereby give them full access to do as they see fit.' Or, 'I want to give all of my digital assets to my best friend who I trust to do with it as she sees fit.'"

(c) 2014 the Charleston Daily Mail (Charleston, W.Va.)