Wills, Trusts & Estates Prof Blog

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

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Monday, February 23, 2015

Article on Private Contracts and Digital Assets

Natalie Banta

Natalie M. Banta (Stetson University College of Law) recently published an article entitled, Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death, 83 Fordham L. Rev. 799-854 (2014).  Provided below is the article’s abstract:

We live in a world permeated with technology.  Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs.  Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes.  The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death.  Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets.  Instead, digital assets are controlled by a private contract entered into by an account holder and a company that provides services or digital products.  This Article explores the growing conflict between traditional succession practices and digital asset succession, which is controlled by digital asset contracts.  It begins by tracing the development of private contracts as a method of transferring assets at death and shows that although contracts are regularly used to transfer assets at death, digital asset contracts have taken an unprecedented step of prohibiting or severely limiting the transfer of assets at death.  This Article next explores the prevalence of digital assets and explains how service providers address digital asset inheritance in private contracts.  It argues that digital asset contracts that deny inheritance may be validly formed but should be void as a matter of public policy because they transfer decision-making power about assets from an individual account holder to corporations.  As our control over the ultimate fate of our digital assets diminishes, the nature of our property interests in digital assets also shifts away from our traditional understanding of ownership of personal property.  It argues that we should take a conscious approach to reforming succession law based on time-honored principles of American succession law that benefit society as a whole and not allow private contracts controlling digital assets to hijack our system of inheritance.  This Article concludes by offering suggestions for reform and action before the ability to transfer and preserve digital assets falls beyond our reach.

February 23, 2015 in Articles, Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Three-Parent Babies Destined for the U.S.?

DNA 2

I have previously discussed how lawmakers in the United Kingdom voted in favor of three parent babies.  Yet, things are moving at a much slower pace in the United States as scientists debate the safety and ethics of trying the experimental technique in humans. 

Although it is a long way from any fertility clinic, it could work as follows: Doctors would extract an egg from the mother carrying bad mitochondria. They would remove the nucleus from that egg, and with it, the genetic traits mom would pass down to her kids. Then, they would implant that nucleus inside another egg donated by a different woman, an egg with healthy mitochondria. Fertilize that egg with dad's sperm, and in theory, you would end up with a baby free of mitochondrial disease. But, because mitochondria do contain their own DNA, any child produced this way would inherit a small fraction—far less than one percent—of their DNA from that second woman. That's why some have called this technique three-parent in vitro fertilization.

Many skeptics of this procedure think manipulating embryos to this extent could put medicine on the slippery slope toward designer babies.  Paul Knoepfler, a UC Davis School of Medicine professor believes the U.K. vote was premature.  He said this technique would create genetically modified humans and he worries that using it in as an attempt to stamp out mitochondrial disease could lead to equally bad developmental disorders or miscarriage.  He also points out that any unexpected problems in children born this way could become hereditary.  “We’re talking about permanently changing human DNA.  And so I think it is reasonable to think about how this could have repercussions for many generations in the future.” 

See David Wagner, Is U.S. Ready for ‘Three-Parent’ Babies?, KPBS, Feb. 16, 2015.

February 16, 2015 in Current Affairs, Estate Planning - Generally, Technology | 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)

Wednesday, February 4, 2015

Britain Votes in Favor of 3-Parent Babies

IVF

I have previously discussed Britain’s proposal to allow scientists to create babies from the DNA of three people, a technique that could protect some children from inheriting potentially fatal diseases from their mothers.  On Tuesday, Britain’s House of Commons gave preliminary approval to move forward with this bill. 

Before becoming law, the bill requires approval by the House of Lords and further Commons votes on any amendments.  If this occurs, it would make Britain the first nation to allow embryos to be genetically modified. 

The vote in the House of Commons was 382-128 in favor.  No date has been set for debate in the House of Lords but it is expected to be in the next few weeks. 

See Maria Cheng, UK House of Commons Oks Making Babies from DNA of 3 People, Associated Press, Feb. 3, 2015.

February 4, 2015 in Current Affairs, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Britain Could Legalize Three-Parent Babies

Babies

Britain is on path to become the first country in the world to allow the creation of “three-parent” babies if MPs vote in favor of changing the law tomorrow. 

The procedure replaces a small amount of faulty DNA in a mother’s egg with healthy DNA from a second woman, so that the baby would inherit genes from two mothers and one father.  The idea behind this is to prevent certain genetic diseases from being passed onto children.  While most experts are in favor, handfuls have raised concerns including the Church of England. 

Under current UK law, the procedure is banned because genetically altered embryos cannot be implanted into a woman.  If MPs in the House of Commons approve the change in law, the decision will pass to the House of Lords for a vote at the end of the month; if the Lords agree the Human Fertilization and Embryology Authority could license clinics to perform the procedure as soon as this fall.  The first of these babies could be born in 2016.

See Ian Sample, ‘Three-Parent’ Babies Explained: What Are the Concerns and Are They Justified?, The Guardian, Feb. 2, 2015.

February 2, 2015 in Current Affairs, Estate Planning - Generally, Technology | Permalink | Comments (1) | TrackBack (0)

Saturday, January 24, 2015

No Bad Blood Here: Turning the Clock Back With Parabiosis

Blood

Parabiosis is a 150-year-old surgical technique that unites the vasculature of two living animals; it mimics natural instances of shared blood supply, such as conjoined twins or animals that share a placenta in the womb.  Experiments with parabiotic rodent pairs have led to breakthroughs in endocrinology, tumor biology and immunology. 

More recently, parabiosis has been used in the field of ageing research.  By joining the circulatory system of an old mouse to that of a young mouse, scientists have produced remarkable results.  The blood of the young mice seems to be making the old mice stronger, smarter and healthier.  Last September, a clinical trial in California became the first to start testing the benefits of young blood in older people with Alzheimer’s disease.  “I think it is rejuvenation,” says Tony Wyss-Coray, a neurologist at Stanford University in California who founded a company that is running the trial.  “We are restarting the ageing clock.” 

Yet, given the history of dashed hopes in the anti-ageing field, any caution over young blood is justified.  Further testing is expected to initiate as researchers learn more about parabiosis.

See Megan Scudellari, Ageing Research Blood to Blood, Nature, Jan. 21, 2015.

Special thanks to Lewis Saret for bringing this article to my attention.  

January 24, 2015 in Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Family Seeks to Access Son's Digital Data

Computer 2

When Bill and Kristi Anderson lost their son Jake in December 2013 from hypothermia, they were surprised to discover that without a search warrant, the law does not permit them access to Jake’s final text messages, phone calls or pictures.  “Was he abducted? Did he get lost? We don’t know,” Kristi Anderson testified before lawmakers Tuesday morning, “but we think his cell phone could possibly contain some of those answers.” 

Jake’s parents want answers surrounding his death.  Fortunately, Representative Debra Hilstrom wants to help them.  “Imagine if your bank chose to treat your assets in the same way and said, ‘oh, no, you died, so no one can get access to your assets.  We’d all be outraged.”  Hilstrom authored a bill that would allow account holders or a personal representative of the deceased get access to digital assets, as long as the deceased does not prohibit access in their will. The Minnesota Legislature will hold additional hearings to vote on the bill.

See Tom Hauser, Family Fights to Access Late Son’s Digital Data, ABC Eyewitness News, Jan. 21, 2015.

January 24, 2015 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

E-Mail Etiquette Rules To Live By

EmailTechnology and e-mail plays a vital role in any business, especially estate planning.  It helps make communication between clients and other professionals more efficient.  However, as with most things, there are specific rules estate planning professionals should follow when it comes to using technology and e-mail.  Below are important e-mail etiquette rules to live and work by:

  • Be conscientious about private information.  Estate planners handle a plethora of personal information, thus, it is important when you send information by e-mail that you are aware about any private information you are sharing.
  • Watch out for the “Reply All” button.  When you “reply all” a lot of eyes may be reading something whom you had not intended.  Use this button sparingly.
  • Use BCC and CC features when appropriate.  Not everyone needs to be CC’ed or BCC’ed on the e-mails you send.  People are inundated with e-mails every day, so unless it is absolutely necessary, use these options only when needed.
  • ALWAYS use a signature.  Many professionals neglect this simple and easy step.  Not only is it helpful in identifying you, it is also nice for others to have your contact information handy. 
  • Reply to e-mails in a timely fashion.  A good practice would be to return all e-mails received during the same business day.  Even if you do not have a complete answer, it is nice to let people know you have received their e-mail.

See Kristina Schneider, Top 10 E-mail Etiquette Rules for Estate Planning Professionals (and Their Assistants and Staff), Ultimate Estate Planner, Jan. 1, 2015. 

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

January 16, 2015 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, January 11, 2015

Article on Posthumously Conceived Children and Social Security Benefits

Social security 1

Catherine Kim (J.D. 2014, Loyola Law School, Los Angeles) recently published an article entitled, Posthumously Conceived Children and Their Social Security Benefits Based on State Intestacy Law: How Astrue v. Capato Changes Future Social Security Benefits As Technology Advances, 46 Loy. L.A. L. Rev. 1141-1158 (2013).  Provided below is a portion of the article’s introduction.

A widowed spouse may have a variety of reasons why she wants to conceive after her spouse’s death. A widow can turn to in vitro fertilization to make “a tribute to one’s deceased partner . . . [, to follow] religious reasons . . . [,] to know the genetic origin of one’s child . . . [, to] produce a full sibling rather than a half sibling . . . [, or] to create a grandchild.” However, a recent U.S. Supreme Court case may impact their decision to do so. Before Astrue v. Capato, courts inconsistently addressed the issue of Social Security benefits for posthumously conceived children under the United States Social Security Act (the “Act”). The Act states that families of deceased workers are entitled to Social Security benefits. Some courts ruled in favor of allowing benefits for posthumously conceived children, while others denied such benefits. In addition, the emergence and increasing use of in vitro fertilization and other assisted reproduction methods have exacerbated the problem of determining a child’s legal parentage, especially when wills omit posthumously conceived children. Courts have, at times, struggled with deciding whether these children qualified under their deceased parent’s benefits when there was no consent to or mentioning of posthumously conceived children under the decedent’s written will or addendum.

January 11, 2015 in Articles, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Technology | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Technology Could Replace Lawyers By 2030

Computer 2

According to a report by Jomati Consultants LLP, artificial intelligence and robotics will change the entire legal landscape in by 2030.  The founder of the British-based legal consulting firm, Tony Williams, says that law firms will see almost all of their process work handled by robots.  This will revolutionize the industry, “completely upending the traditional associate leverage model.”

Although the report heavily favors technology, not everyone is on board with the idea the legal structure can be automated.  Ken Chasse, a lawyer at Barrister & Solicitor for 48 years, wrote an independent report that says legal advice could not be mechanized, by nature. 

See Clay Gillespie, Legal Consulting Firm Believes Artificial Intelligence Could Replace Lawyers By 2030, Hacked, Jan. 2, 2015. 

Special thanks to Cale Cormier for bringing this article to my attention.

January 2, 2015 in Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)