Wills, Trusts & Estates Prof Blog

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

Thursday, June 23, 2016

Article on Digital Privacy Interests

Social mediaNatalie M. Banta recently published an Article entitled, Death and Privacy in the Digital Age, 94 N. Carolina L. Rev. No. 927 (2016). Provided below is an abstract of the Article:

Americans store an overwhelming amount of sensitive, personal information online. In email accounts, social networking posts, blogs, shared pictures, and private documents, individuals store (perhaps unwittingly) the secrets and details of their lives in an unprecedented manner. During an individual’s life, these accounts are seemingly under the direct control of an account holder. Privacy is occasionally threatened, but people continue to use online services and pour personal information into their online accounts.

When developers created these online services and platforms, it is unlikely that they gave much thought to what would happen to accounts when an account holder died. Yet, the treatment of these accounts after an account holder’s death is an increasingly pressing issue in today’s society as more and more Americans die with active, password-protected accounts in their name. In determining how these assets will be handled at an individual’s death, powerful principles collide — including privacy, contract, property, and freedom of information.

This Article discusses how privacy interests are traditionally terminated at death and explores how they should be revived and reshaped in a digital future. It argues that to align posthumous privacy interests with the needs of a digital future, the law must ensure that succession principles apply to privacy as well as property rights, and that decedents’ individual intent for the fate of digital assets is honored. The Article acknowledges that private contracts may be a sufficient tool to protect privacy after death in some instances, but argues that the lodestar in any discussion of posthumous privacy should be testamentary intent. In the absence of testamentary intent, state legislatures should enact default rules of digital asset succession that accord with the family-centered paradigm of inheritance.

June 23, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Thursday, June 2, 2016

Article on Lessons from the Panama Papers

Panama papersLawrence J. Trautman recently published an Article entitled, Following the Money: Lessons from the Panama Papers, Part 1: Tip of the Iceberg, (2016). Provided below is an abstract of the Article:

        Widely known as the “Panama Papers,” the world’s largest whistleblower case to date consists of 11.5 million documents and involves a year-long effort by the International Consortium of Investigative Journalists to expose a global pattern of crime and corruption where millions of documents capture heads of state, criminals and celebrities using secret hideaways in tax havens. Involving the scrutiny by over 400 journalists worldwide, these documents reveal the offshore holdings of at least several hundred politicians and public officials, including the prime ministers of Iceland and Pakistan, the president of Ukraine, and the King of Saudi Arabia. More than 214,000 offshore entities appear in the leak, connected to people in more than 200 countries and territories.

        Since these disclosures became public, national security implications already include abrupt regime change, and probable future political instability. It appears likely that important revelations obtained from these data will continue to be forthcoming for years to come. Presented here is Part 1 of what may ultimately constitute numerous-installment coverage of this important inquiry into the illicit wealth derived from bribery, corruption, and tax evasion. This article proceeds as follows. First, disclosures regarding the treasure trove of documents from the Panama-based law firm, Mossack Fonseca are reviewed. Second, is a discussion of the impact and cost of bribery and corruption to the global community. Third, I define and briefly explore issues surrounding “tax evasion.” Fourth, the impact of social media and technological change on transparency is discussed. Next, a few thoughts about implications for future research are offered.

June 2, 2016 in Articles, Current Events, Income Tax, Technology | Permalink | Comments (0)

Saturday, May 7, 2016

Prince’s Estate Will Use Blood Sample To Fight Paternity Claim

Prince3I have previously discussed the ongoing issues surrounding the estate of the late iconic musician Prince.  Recently the Prince estate has announced that it is ready to use a sample of Prince’s blood to battle any paternity claims against the royal bloodline.  “A Minnesota judge signed off Friday on a request from the Rock Hall of Famer’s reps to analyze a sample of Prince’s blood in case of future ‘parentage issues.’”  The blood sample will be delivered to a DNA Diagnostics center for genetic testing just in case anyone comes forward claiming to be Prince’s child.  There will likely be a long drawn out estate fight because Prince passed away without a will.  These legal developments are probably going to be ongoing because of the large size of the estate. 

See Larry McShane, Prince’s estate to fight paternity claims with late rock icon’s blood sample, Daily News, May 6, 2016.

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

May 7, 2016 in Current Affairs, Estate Planning - Generally, Intestate Succession, Music, Science, Technology | Permalink | Comments (0)

Thursday, April 28, 2016

German Court Grants Access To Digital Accounts For Heirs

ComputerLately, the subject of access to digital accounts after the death of the owner has been in the news due, in no small part, to the fact that a number of states have adopted legislation addressing the matter. However, Germany just got it's first bit of law on the subject after a Berlin regional court ruled that the parents of the deceased minor had the right to access their child's Facebook account including all private messages. The court reasoned that the digital messages were the same as inheriting letters and other documents under normal estate law. In addition, the court addressed the privacy issue, an important aspect under German law, along the same lines saying a third party sender had no special right to privacy online than they would have with physical messages that were inherited. This ruling was vigorously fought by Facebook which severely limits the ability of non account holders to access the account of a deceased user. Currently an appeal is pending although no trial date has yet been set.

See Jabeen Bhatti, German Parents Can Inherit Child's Online Profiles, BNA, April 20, 2016.

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

April 28, 2016 in Estate Planning - Generally, New Cases, Technology | Permalink | Comments (0)

Wednesday, April 27, 2016

Helping People Avoid Cyber Intestacy

Applying onlineIn this modern social media age a large number of people have developed online identities. This article discusses the issue of “cyber intestacy,” which is the failure of a person to plan for their online presence after death.  It is a good idea for advisers to ask their clients if their wills contain digital asset clauses.  Clients should take an inventory of all the digital assets that they own.  It is a good idea for people to plan ahead so that family members do not get stuck in a bad situation of trying to access their digital accounts.  “Automatic bill payments and good-until-cancelled orders continue after death, while electronic bills may go unpaid, and heirs may struggle to access photographs.”  Digital asset planning can help clients maintain control over their digital legacy. 

See Anne Tergesen, Wealth Adviser Daily Briefing: Help Clients Avoid ‘Cyber Intestacy,’ The Wall Street Journal, April 26, 2016.

April 27, 2016 in Estate Planning - Generally, Intestate Succession, Technology, Web/Tech, Wills | Permalink | Comments (0)

Sunday, April 24, 2016

Certain Genetic Tests Will Be Reimbursed By Medicare

Genetic testingMedicare will now offer reimbursements for cancer patients who receive genetic testing for certain hereditary cancer-related disorders.  This expanded coverage of genetic testing will give cancer patients the tools they need to decide on different treatment options.  It will also provide family members and relatives with information about possible risks they might have.  More genetic information can help people identify hereditary risks and to take early preventative steps.  As the population continues to age issues relating to what Medicare covers is going to take on more importance in public discussions.  Lawmakers looking for support from senior citizens will need to discuss their plans for tackling these Medicare issues.  Cancer is a deadly disease that impacts the lives of millions of information and the information that can be obtained from this type of genetic testing will give people the tools to help fight this disease.

See Elizabeth Leis Newman, Medicare to reimburse certain genetic tests, McKnight’s, April 22, 2016.

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

April 24, 2016 in Current Affairs, Estate Planning - Generally, Non-Probate Assets, Science, Technology | Permalink | Comments (0)

Monday, April 18, 2016

The Struggles Of Living With Alzheimer’s Disease

Alzeimer'sThis is an emotional first person account from patient-advocate Greg O’Brien about the struggles of living with Alzheimer’s disease.  Around five million Americans currently suffer from Alzheimer’s disease, and that number is expected to double within the next 20 years as baby boomers continue to age.  The cost of treating Alzheimer’s patients is currently more than $200 billion per year, and that number could surpass $1 trillion by 2050.  In this column Greg O’Brien documents his own personal struggle with the disease and the impact it is having on his relationship with his family.  This account personalizes a struggle that is impacting millions of people.  Alzheimer’s disease also has an impact on estate planning as families struggle to adapt to the changing circumstances.  Planning ahead for diseases like Alzheimer’s is always important for any estate planning.

See Greg O’Brien, I’m documenting my own Alzheimer’s disease while I still can, The Washington Post, April 13, 2016.

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

April 18, 2016 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Wednesday, April 13, 2016

Why E-Filing Is A Good Idea

File earlyConverting to E-filing makes paying taxes easier.  In 2015 more than 129 million Americans electronically filed their tax returns.  E-filing tax returns increases the odds of the filings being accurate.  The information in the electronic filing is encrypted and the IRS has been taking more steps recently to crack down on identity theft.  The process of e-filing is convenient and there are programs available for people who meet certain requirements.  Faster tax refunds are another advantage of electronically filing your tax returns.  People who e-file can also receive assistance with the tax provisions of the Affordable Care Act.  There are also payment options available to people who have to pay the federal government money.  There is an April 18 deadline that is fast approaching and taxpayers will need to act quick if they want to avoid the consequences of missing the deadline.

See Frank Ellis, Six reasons to e-file your taxes in 2016, Examiner, April 13, 2016.

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

April 13, 2016 in Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, Technology, Web/Tech | Permalink | Comments (0)

Friday, April 8, 2016

Law Firms And Lawyers Need To Adapt To Changing Technology

Legal technologyThis column discusses an article that was written by Elaine Mcardle discussing the need for law firms, lawyers, and recent graduates to adapt to changing technology.  Lawyers are facing increasing digitization and outsourcing, which is analogous to the situation of taxi drivers being replaced by Uber.  Legal professionals will need to figure out how to adapt to this changing reality.  This article discusses some of the programs that are in place to help guide legal professionals through these rapid changes in technology.  “A program recently created by Michele DeStefano of the University of Miami Law called LawWithoutWalls is meant to foster innovation in the legal profession.”  Attorneys who want to adapt and stay ahead should stay informed about the constant changes in legal technology. 

See Pooja Shivaprasad, The Laws of Adaptation, Wealth Strategies Journal, April 1, 2016.

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

April 8, 2016 in Estate Planning - Generally, Professional Responsibility, Technology, Web/Tech | Permalink | Comments (0)

Thursday, April 7, 2016

Minnesota Couple Calls For Post-Death Digital Access Law

ComputerThe ability for family or estate representatives to access digital accounts and information after the death of the owner has been an issue in the news lately. A handful of states, such as Florida, have passed digital access legislation that sets default rules allowing access to the digital asset as well as giving owners the right to set access limits. Now, a Minnesota couple is leading a battle to have the state adopt a digital access statute. The couple is motivated by the difficulties they faced in accessing the information stored on the password protected devices their son owner at the time of his accidental death. And they appear to have hope for quick action, a bill just passed committee in the state senate while, in the house, parallel legislation is moving forward. No opposition from the governors office is expected once a bill is pass.

See Brian Bakst, Parents Seek Digital Data Law After Son's Death, Minnesota Public Radio, April 5, 2016.

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

April 7, 2016 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)