Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

A Member of the Law Professor Blogs Network

Wednesday, March 25, 2015

The Digital Assets Battle

Boxing glovesCompeting legislation is battling it out in state legislatures that represents the opposing interests of the tech industry and those advocating for uniform legislation on fiduciaries' access to digital assets of incapacitated and deceased individuals. During the drafting phase of the Uniform Fiduciary Access to Digital Assets Act, attempts were made to collaborate with tech industry representatives, such as Facebook, but were unsuccessful. Much of the tech industry is troubled by the Act, which overrides terms of service agreements of providers.

The battle between privacy and accessibility continues to wage through the states. The Uniform Act has only passed in Delaware, and the alternative Act representing tech industry interests, the Privacy Expectation Afterlife and Choices Act, has passed only in Virginia though it has not yet been signed into law.

See John DeBruyn, The Battle of the States Over Access to Digital Assets by Fiduciaries, Steve Leimberg's Estate Planning Newsletter #2292, March 24, 2015.

Special thanks to Steve Oshins (Oshins & Associates LLC) for bringing this case to my attention.

March 25, 2015 in Estate Administration, Estate Planning - Generally, New Legislation, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Florida's Guardianship System Could Get a Makeover

Guardianship

Last year, an investigation detailing the abuse regarding Florida’s guardianship system showcased that in cases across the state, court-appointed guardians were taking advantage of the elderly and incapacitated people they were supposed to protect. 

Now, Florida’s much-maligned system may finally get the overhaul it so desperately needs.  Half a dozen bills have been filed and several of them are likely to pass.  “No longer can anyone claim that we are making this up and it’s not a statewide chronic problem,” says Dr. Sam Sugar of the group Americans Against Abusive Probate Guardianship. 

One of the most important bills, Senate Bill 1226, could make the most sweeping changes by creating a wholly new agency to supervise guardians.  Currently, there is almost no remedy for family members to complain that a guardian is physically or financially abusing a ward.  The only recourse is to complain to a probate judge.  The new law, if passed, would be “absolutely revolutionary for this state.”

See Michael E. Miller, Florida’s Broken Guardianship System Could Finally Get Overhauled This Year, Miami New Times, March 4, 2015.

March 17, 2015 in Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

ABLE Bills Moving Through State Legislatures

LawAs I have previously discussed, the IRS issued a notice to encourage states to begin enacted legislation for ABLE programs prior to guidance issuance. The ABLE Act requires that states create ABLE programs by enacting regulations in order for ABLE accounts to available. Over half of the states have begun that process. As of last week, three state governors, West Virginia, Utah, and Virginia, had ABLE bills pending their approval.

See Michelle Diament, State Moving Forward on ABLE Accounts, Disability Scoop, March 13, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

March 17, 2015 in Estate Planning - Generally, New Legislation, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Montana Bill Allowing Access to Deceased's Digital Data

Computer 2

Montana could become one of the first states to answer the long-standing question: what happens to our Facebook posts, Tweets and other digital records when we die?  A bill heard Thursday morning in the House Judiciary Committee would give your survivors access to your data, unless you leave specific instructions to the contrary. 

Currently, individuals can leave behind instructions as to who can access your data, or even request that it be deleted upon death.  However, it is unclear about what happens when a person leaves no instructions, and that is what this law attempts to clear up.  The bill would allow the personal representative of the deceased person to access the person’s online accounts, to retrieve photographs, documents or anything else. 

At least one social network is fighting back against the proposal.  Dan Sachs, an associate manager for estate policy with Facebook, says the act of dying does not constitute giving consent to let other people see your digital data.   

As of now, eight states have passed laws allowing survivors to access a person’s email, social media, etc.  Nevada allows survivors to close accounts, but not access what is inside of them.

See Steve Jess, Montana Bill Would Give Survivors Access to Your Digital Data After You Die, Montana Public Radio, March 12, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

March 16, 2015 in Estate Administration, Estate Planning - Generally, New Legislation, Non-Probate Assets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

IRS Encourages States to Create ABLE Programs

LawAs I have previously discussed, the new ABLE Act allows individuals with disabilities to take advantage of a new savings plan with tax advantages for qualified disability expenses. The IRS must issue guidance on the new Sec. 529A by June 19, but last week the IRS informed states through Notice 2015-18 that they can go through with creating a state ABLE Program prior to the guidance. Accounts created prior to the guidance will continue to receive benefits and time will be given for plans to come into compliance once the guidance rules have been issued.

See Sally P. Schreiber, Sec. 529A ABLE Accounts May Be Set Up Before The IRS Issues Guidance, Journal of Accountancy, March 10, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

March 16, 2015 in Estate Planning - Generally, New Legislation, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

New Bill Allowing Trusts for 360 Years

TrustLegislation that would allow residents of Mississippi to place their assets in a trust for up to 360 years passed in the state House yesterday and is now before Governor Phil Bryant.  A spokesperson for Bryant said the governor would spend adequate time studying the legislation when it reaches his desk before deciding whether to sign it into law. 

House Judiciary Chair Mark Barker said many states have been passing similar laws allowing for the establishments of trusts for 360 years or longer.  In reality, the process is already occurring through loopholes in the existing state rules against perpetuities.  Under the new Mississippi bill, a trust on property could last for 110 years, but a trust for assets could last 360 years. 

See Bobby Harrison, Bill Allowing Trusts for 360 Years Heading to Governor, Northeast Mississippi Daily Journal, March 13, 2015.

March 13, 2015 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0) | TrackBack (0)

Proposed Fiduciary Rules for Advisors

Law1The new fiduciary rules proposed by the Department of Labor would apply fiduciary duties to retirement plan brokers. If passed these new rules are expected to provide added protection to consumers that often do not read or do not understand the investment disclosures they are provided.

See Ron A. Rhoades, 'Critical Moment' for Fiduciary Advisors, Financial Planning, Feb. 23, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

March 13, 2015 in New Legislation, Non-Probate Assets, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

Support Expressed at Pro Se Wills and Probate Forms Bill Hearing

LawAs I have previously discussed, testimony on Senate Bill 512 was heard in Texas by the Senate State Affairs Committee on Monday. There was no opposition testimony to the bill that would direct the Texas Supreme Court to create forms aimed at helping low-income Texans create wills and probate estates pro se. The response from probate lawyers was positive and expressed the sentiment that this bill would increase access to the courts for many Texans that cannot afford legal representation.

See Angela Morris, Probate Lawyers Support Pro Se Forms, Texas Lawyer, March 9, 2015.

March 12, 2015 in Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, March 9, 2015

Texas Senate Bill Proposes Creation of Pro Se Estate Planning Forms

WillIn Texas, testimony on Senate Bill 512 is being heard today by the Senate State Affairs Committee. If passed the bill would direct the Texas Supreme Court to create various forms to aid individuals in creating wills and navigating probate pro se.

See Angela Morris, Senate Committee Considering Pro Se Probate Forms, Texas Lawyer, March 6, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

March 9, 2015 in Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

ULC Acts Approved by ABA House of Delegates

ABAAt the mid-year meeting of the ABA House of Delegates held on February 9th, the House approved the three ULC acts that were before it: the Uniform Fiduciary Access to Digital Assets Act, the Uniform Recognition of Substitute Decision-Making Documents Act, and the Amendments to the Uniform Voidable Transactions Act.  All three acts were on the consent calendar of the House of Delegates.

Each of these acts were made possible by the excellent work of the drafting committee chairs—Suzanne Walsh, David English, and Ed Smith; reporters Naomi Cahn, Linda Whitton, and Ken Kettering; and to all the members of the three drafting committees, their ABA advisors, and their observers. 

Special thanks to Brittany Gaddy (Uniform Law Commission) for bringing this memorandum to my attention. 

February 11, 2015 in Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)