Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Thursday, July 24, 2014

A Proposal for the Future of Digital Estate Planning

Ipad

Last week, the Uniform Law Commission drafted the Uniform Fiduciary Access to Digital Assets Act, which is a model law that would let relatives access the social media accounts of the deceased.  Because so many of us live more of our lives online, more of what used to be tangible turns digital.  “Where you used to have a shoebox full of family photos, now those photos are often posted to a website.”

The goal of the Uniform Fiduciary Access to Digital Assets aims to make the digital shoebox equally accessible to family members.  “This is the concept of ‘media neutrality’ . . . . The law gives the executor of your estate access to digital assets in the same way he had access to your tangible assets in the old world.  It doesn’t matter if they’re on paper or on a website.” 

The ULC’s proposed law would override terms-of-service agreements that specify the user alone can only access his or her account. 

Yet companies such as Facebook see a downside to the proposed law.  “The bill takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased . . . This would include highly confidential communications from third parties who are still alive---doctors, psychiatrists, and clergy.”

See Molly Roberts, A Plan To Untangle Our Digital Lives After We’re Gone, All Tech Considered, July 23, 2014. 

July 24, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

The Downside to Media Neutrality

Computer ProblemsAs I have previously discussed, the Uniform Law Commission adopted the Uniform Fiduciary Access to Digital Assets Act, which is a model code that aims to address the problem of digital assets disappearing into cyber space after the account holder dies. States will now be faced with the decision of whether to adopt the model provisions, including the idea of “media neutrality”, which allows the executor of the estate access to the digital assets.

However, for some, including those connected to high profile social media sites, this increased accessibility can be an invasion of privacy, both for the deceased account holder and third party individuals whose messages are saved to the account. Many private companies are now offering services that allow the account holder to set up what emails, pictures, and documents are to be saved or deleted after the account is deactivated or becomes inactive. If the model code is enacted in a state, then the person’s intention to make their account private after they die may be overridden and the account made public.

See Molly Roberts, A Plan to Untangle Our Digital Lives After We’re Gone, NPR, July 23, 2014.

July 24, 2014 in Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Yahoo Offering Death Event Planning and Digital Asset Management Packages in Japan

ComputerAs I have previously discussed, the issue of family members accessing online accounts after the account holder has died is an issue that private companies are beginning to address. Yahoo Japan has begun marketing a package to customers in Japan that includes burial and wake preperations as well as a service that will send a pre-recorded message to designated loved ones. The service is called “Yahoo Ending” and also allows the account holder to designate which files and pictures should be deleted and which should be released to family members upon their death.

See Anna Fifield, New ‘Yahoo Ending’ Service Lets Users in Japan Prepare for the Inevitable, The Washington Post, July 21, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

July 23, 2014 in Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Using Online Calculators for Estate Planning

Mr. CalculatorThere are many useful and low cost tools on line to assist with estate planning. One such tool is estate planning calculators, which range from very simple generic calculators to those that compute loan amortization. The variety of types of calculators and companies offering them gives both estate planners and their clients many options to choose from to find the one that is right for the task at hand. They can assist with a wide range of tasks, such as financial planning and calculating taxes. There are even apps for the Iphone and iPad.

See Donald Kelley, Internet Calculators for Estate Planners, Wealth Management, July 16, 2014.

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

July 22, 2014 in Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

Article on Technology Probate

Jason havens

Jason E. Havens recently published an article in the series, Technology Probate, Probate & Property, Vol. 28 No. 4, 48-50 (July/August 2014).  Provided below is a portion of the article’s introduction:

As discussed in part one of this series, the modern trust and estates law practice faces new challenges in dealing with clients, one of the most critical of which is drafting and delivering high-quality legal documents that address each client’s issues and objectives.  Part one of this two-part series focused on why to use a drafting system, where to use that system, and when to use it.  Prob. & Prop., Mar./Apr. 2014, at 53.  This second part of the series will discuss specific drafting systems: “who” is behind several of the leading systems, “what” they offer, and “how” to decide among them (or others). 

July 21, 2014 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Digital Estate Planning

ComputerMany people fail to consider what will come of your online accounts when you die.  While grieving relatives might want access for sentimental reasons or to settle financial issues, you may not want a spouse going through every single e-mail. 

The Uniform Law Commission was on track Wednesday to endorse a plan that would give loved ones access to, but not control over, the deceased’s digital accounts, unless otherwise specified in a will.  If the legislation is adopted by the legislature, a person’s online life could become as much a part of the estate plan as deciding what to do with physical possessions. 

Privacy advocates are skeptical of the proposal.  “The digital world is a different world from offline.  No one would keep 10 years of every communication they ever had with dozens or even hundreds of people under their bed.”

While some tech providers have come up with their own solutions, the Uniform Law Commission’s proposed law would trump access rules outlined by a company’s terms of service agreement, although the representative would still have to abide by other rules including copyright laws. 

See Anne Flaherty, What Happens to Your Online Accounts When You Die? Associated Press, July 16, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

July 17, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech, Wills | Permalink | Comments (0) | TrackBack (0)

Saturday, July 12, 2014

The Issues Surrounding Digital Estate Planning

Digital lock

With nearly four billion registered e-mail accounts worldwide, a large aspect of estate planning concerns what happens to this information after we are gone.  Entrepreneurs and legislative groups attempt to offer solutions and build awareness of the complications surrounding digital estate planning after death.

One of the problems with fiduciary access is that it may be a violation of federal privacy law or a computer fraud and abuse act.  It may be a criminal act to violate the terms of service agreement.  However, the inability to shut down a deceased loved one’s accounts could have unforeseen risks.

The year after someone passes is one of the most vulnerable times for identity theft.  Thieves can use a dead person’s information to rack up credit card charges, apply for loans, or even file false tax returns.  Even more frightening, much of this information can be found on the internet through something as simple as a shopping account.   

To date, only seven states have laws governing online estate planning.  Yet the committee on the Uniform Law Commission is attempting to change that by drafting the Fiduciary Access to Digital Assets Act, which would give fiduciaries the same rights over online estates as they have over physical estates.  The bill is currently being reviewed by the Uniform Law Commission and will be voted on for approval on Wednesday.  It will then be up to the state legislatures to propose the bill. 

See Hari Sreenivasan, Dead and Online: What Happens to Your Digital Estate When You Die? PBS News Hour, July 11, 2014.                                                                                                                                                                                                 

July 12, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2014

Trust Technology is Taking Over

Mr. LaptopTechnology can be a valuable tool to get tasks that used to take hours of work done by an automated system, which frees up time for other tasks. This is true for wealth managers as well, and there are many types of trust technology systems out there that can do the tasks that can be handled by automated systems and allow the people to engage more with current and prospective clients. There are many types of systems that offer various services, including individual tools that specialize in an area and those that are an all-in-one approach.

See Scott Martin, Scope and Specialization Battle for Trust Technology Crown, The Trust Advisor, July 7, 2014.

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

July 10, 2014 in Technology, Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, July 4, 2014

Digital Assets May Disappear After Death if Not Planned For

ComputerTechnology has surpassed the law in the area of digital assets. Without clear legal avenues for how family members can access accounts after the account holder dies, many digital assets such as photos, emails, and personal information, are simply lost. Some states, like Virginia and Delaware, have enacted laws that address how digital assets are handled after the death of the account holder, but the law is largely behind the times on this issue. To make sure these assets are passed on, it is important for individuals to plan ahead, such as using private services that notify a designated list of individuals after their account becomes inactive or saving passwords on their computer.

See Thomas J. Fitzgerald, How to Digitally Avoid Taking It to the Grave, The New York Times, July 2, 2014.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

July 4, 2014 in Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

Article on Your Digital Footprint Left Behind at Death

Sandi VarnadoSandi Varnado (Loyola University New Orleans College of Law) recently published an article entitled, Your Digital Footprint Left Behind at Death: An Illustration of Technology Leaving the Law Behind, 74 Louisiana Law Review. 719 (2014). Provided below is the abstract from SSRN:

Death has become more complicated than it used to be, in large part due to the digital age. Americans, particularly younger ones, spend a substantial portion of their waking hours on some sort of electronic device, with a large portion of that time spent online, and many predict the continuation of this trend. Yet, the law, still set in the pen and ink era, has failed to keep pace with technology in many contexts, including one’s digital footprint at death.

One’s digital footprint consists of the sum of his digital assets, and the average American’s digital footprint is valued at nearly $55,000. However, the majority of Americans have not planned for their digital footprint upon their death, due to neglect, concern over sharing information, underestimation of the value of the digital footprint, and/or anxiety over the magnitude of the digital footprint. As such, any estate plan is rendered incomplete, potentially leaving digital assets “adrift in cyberspace.”

The interests of various groups of people lead to competing policies on whether access to a decedent’s digital footprint should be allowed or denied. The law does not help. Louisiana, like most states, has no specific legislation in place to govern a decedent’s digital footprint, leaving traditional legal principles to govern technological advancements that did not exist and were probably not even anticipated at the time the laws in question were written. Thus far, the problems have not reached epic proportions, but that day is coming, and eventually, the digital footprint issue will become a serious problem.

This Article assesses the various interests triggered by the digital footprint issue, including efficient estate administration, the privacy interests of the decedent and those with whom he communicated, the interests of those left behind, the interests of online service providers that contracted with a decedent when he created his digital assets, and society. It also addresses the Gordian knot of overlapping and complicated legal analyses that the digital footprint issue triggers. The Article additionally details the Louisiana approach to the digital footprint issue, which is, as of now, only estate planning, and analyzes the various potential resolutions to the issue, highlighting the deficiencies of each. Finally, the Article proposes that both federal and state action is required to effectively handle the multitude of legal issues triggered by the digital footprint and provides a detailed scheme for both levels to do so.

June 26, 2014 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)