What Happens to My Digital Assets When I Die or Become Incapacitated?

We live our lives online. From the photos of grandchildren stored on a cloud server to the automated bill payments keeping the lights on, our digital footprint is massive. When West Virginia residents sit down to draft a will, they typically focus on physical property: the family home in Charleston, the hunting cabin in Pocahontas County, bank accounts, and heirlooms. Yet, a significant portion of modern wealth and sentimental history exists solely in binary code.

Defining Digital Assets Under West Virginia Law

Before you can protect your assets, you must identify them. West Virginia law adopts a broad definition of digital assets. It essentially covers any electronic record in which an individual has a right or interest. This definition goes far beyond just social media profiles.

Common categories of digital assets include:

• Sentimental Assets: Digital photos and videos stored on phones, cloud services (i.e., iCloud, Google Photos, Dropbox), and social media accounts.
• Financial Assets: Cryptocurrency keys (Bitcoin, Ethereum), Non-Fungible Tokens (NFTs), PayPal or Venmo balances, and online gambling accounts.
• Business Assets: Domain names, client lists, intellectual property files, and online storefronts (Etsy, Amazon Seller accounts).
• Communication Accounts: Email inboxes, text message histories, and messaging apps (WhatsApp, Signal).
• Utility and Loyalty Accounts: Frequent flyer miles, credit card reward points, and online subscription services.

It is important to note that the underlying asset is sometimes distinct from the digital record. For example, a bank account is a financial asset, but the online login credentials to access that bank account are a digital asset.

The West Virginia Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)

West Virginia addresses the conflict between privacy laws and estate administration through the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), codified in West Virginia Code § 44D-8A. This legislation creates a legal hierarchy for determining who can access your digital life.

This law does not automatically grant your executor or power of attorney access to everything. Instead, it provides a mechanism for you to grant that authority. If you do not provide explicit consent, the default terms of service of the tech company will likely prevail, and those terms almost always favor locking the account to protect user privacy.

The hierarchy established by West Virginia law is as follows:

• Online Tools: If a service provider offers a specific tool to designate a legacy contact (like Facebook’s Legacy Contact or Google’s Inactive Account Manager), and you use it, this choice overrides everything else.
• Estate Planning Documents: If you do not use an online tool, or the service does not offer one, the specific instructions in your Will, Trust, or Power of Attorney govern.
• Terms of Service: If you have neither an online tool designation nor specific language in your estate plan, the Terms of Service (TOSA) of the specific website or app controls the outcome. These agreements usually prohibit third-party access.

The Difference Between Content and Catalogue

One of the most nuanced aspects of the West Virginia digital asset law is the distinction between the “catalogue of electronic communications” and the “content of electronic communications.”

• The Catalogue: This includes information about the communication. It lists who you emailed, the subject lines, the time stamps, and the sender/receiver addresses. A fiduciary with general authority can typically access the catalogue.
• The Content: This refers to the actual body of the email, the text of the direct message, or the substance of the private chat.

Under federal privacy laws (specifically the Stored Communications Act), service providers are prohibited from releasing the content of communications without the user’s lawful consent. Therefore, under West Virginia law, your estate planning documents must expressly grant your fiduciary authority to access the content of electronic communications. A general clause granting “authority over all assets” is often insufficient for emails and text messages.

Managing Social Media Legacies

Social media accounts often hold immense sentimental value. When a user dies, platforms generally offer two paths: memorialization or deletion.

• Facebook and Instagram: You can appoint a Legacy Contact. This person can manage a memorialized profile (e.g., respond to friend requests, update the profile picture) but cannot read private messages. If no contact is named, the account can be memorialized upon proof of death, locking it from login attempts.
• X (formerly Twitter): This platform currently does not offer a legacy contact feature. They will work with an executor or immediate family member to deactivate an account upon providing a death certificate, but they almost never grant access to the account itself.
• LinkedIn: Family members can request the removal of a profile, which is important for professional reputation management and preventing identity fraud.

Without the proper legal designations in your West Virginia estate plan, your family may be forced to watch a loved one’s profile remain active indefinitely or, conversely, see it deleted against their wishes.

Cryptocurrency and Digital Wallets

Cryptocurrency presents a unique challenge because it is often decentralized. Unlike a bank account in Charleston, where an executor can walk into a branch with a death certificate, there is no “customer service” department for Bitcoin.

If you possess cryptocurrency, you likely have a private key or a seed phrase—a string of random words that acts as the password. If this key is lost, the funds are irretrievable.

For estate planning purposes, you should never write your private keys directly into your Will, as Wills become public record in West Virginia upon probate. Instead, you can use a memorandum or a secure digital vault that your executor can access.

Your estate plan needs to authorize your fiduciary to access, manage, and distribute these assets. Without this authority, an executor might violate federal computer fraud laws by logging into your accounts, even if their intention is to secure the estate.

Email Accounts: The Gateway to Your Life

Your email account is likely the central hub of your digital identity. It is where password resets are sent, where bills are delivered, and where subscription renewals occur. Gaining access to a deceased person’s email is often the first step in unwinding their digital estate.

However, email providers are notoriously strict about privacy. Even with a West Virginia court order, providers like Yahoo or Microsoft may resist turning over the contents of emails due to federal privacy statutes.

To ensure your fiduciary can manage this:

• Explicit Consent: Your Will or Trust must specifically authorize the disclosure of the content of electronic communications.
• Inventory: Keep a secure list of active email addresses so your executor knows which accounts to look for.

Business Owners and Intellectual Property

For West Virginia business owners, digital assets are often critical to the company’s valuation. This includes the company domain name, the client database, proprietary software code, and access to cloud-based accounting systems like QuickBooks Online.

If you are a sole proprietor or the single member of an LLC, your incapacity or death could freeze the business instantly. If no one has the legal authority or the passwords to access the business bank account or the online storefront, revenue stops, and liabilities mount.

Operating Agreements and corporate bylaws should include provisions for digital asset transfer. This ensures that a successor manager or partner can immediately step in and maintain operations without violating computer access laws.

The Problem with Passwords and Encryption

Knowing you have the legal right to access an asset is different from having the technical ability to do so. West Virginia law grants your executor the legal standing to step into your shoes, but it does not magically decrypt a hard drive.

If a device is encrypted (protected by a passcode, fingerprint, or Face ID) and the manufacturer cannot unlock it (which is common with modern iPhones), the physical device might be useless to the estate.

Therefore, a comprehensive digital estate plan must include a mechanism for passing on credentials. This can be done through:

• Password Managers: A service that stores all passwords in one encrypted vault. You can leave the “master password” to your fiduciary in a secure, offline manner.
• Digital Executors: You can name a specific person in your Will to handle only digital assets. This is useful if your primary executor is not technologically proficient.

Digital Assets and Probate in West Virginia

Probate in West Virginia is the court-supervised process of distributing assets. Digital assets are subject to probate just like physical ones, unless they are placed in a Trust or have a beneficiary designation.

• Valuation: Your executor is required to file an Appraisement of the Estate. Determining the value of digital assets can be difficult. While a Bitcoin wallet has a clear market value, a blog with ad revenue or a monetized YouTube channel requires a professional appraisal.
• Transfer: Transferring a domain name or a digital file requires specific steps with the registrar or host. Your executor will likely need to present “Letters of Administration” or “Letters Testamentary” along with a specific citation of RUFADAA authority to the service provider.

Risks of Ignoring Digital Estate Planning

Failing to plan for digital assets creates significant risks for West Virginia families:

• Identity Theft: Deceased individuals are prime targets for identity thieves who use dormant accounts to open credit cards or file fraudulent tax returns.
• Financial Loss: Automatic bill payments may continue for months, draining the estate’s bank account because no one can access the online portal to cancel the subscription.
• Loss of Memories: Cloud storage services will eventually delete data if the monthly fee is unpaid. Years of family history could vanish in an instant.
• Legal Liability: A well-meaning family member who logs into an account without proper authority could theoretically be charged with violating the Computer Fraud and Abuse Act or West Virginia state laws regarding unauthorized computer access.

Steps to Protect Your Digital Legacy

Creating a plan for your digital assets does not have to be overwhelming. You can take concrete steps today to secure your digital footprint.

• Take Inventory: Make a list of your digital assets. Categorize them by type (financial, sentimental, business). Do not put passwords in this document if it will be stored insecurely.
• Use Online Tools: Log into Google, Facebook, and Apple and set up their respective legacy contact features. This is the most effective immediate step you can take.
• Back Up Data: Regularly back up important photos and documents to a physical hard drive. This ensures your family has physical possession of the files, bypassing the need to battle tech companies for cloud access.
• Update Your Estate Plan: Review your Will, Trust, and Power of Attorney. Ensure they contain specific language referencing the West Virginia Revised Uniform Fiduciary Access to Digital Assets Act and explicitly grant authority to access the content of communications.
• Secure Your Credentials: Use a password manager or a secure physical notebook stored in a fireproof safe or safety deposit box to store your login information. Ensure your named fiduciary knows how to locate this information.

How Hewitt Law PLLC Can Help

Navigating the intersection of technology and estate law requires specific knowledge of both West Virginia statutes and federal privacy regulations. A standard “form” will is rarely sufficient to cover the complexities of modern digital property. At Hewitt Law PLLC, we help West Virginia residents build comprehensive estate plans that address the full spectrum of their wealth, from real estate to digital wallets. We can draft the necessary legal instruments to ensure your fiduciary has the authority they need while protecting your privacy and your legacy.

Whether you are concerned about protecting cryptocurrency investments or simply ensuring your children can access your family photos, we can guide you through the process. Contact us today to discuss how we can secure your digital legacy.