Wills, Trusts & Estates Prof Blog

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

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Thursday, September 25, 2014

Article on Testamentary Succession, New Technologies and Recodification

Mariusz.zalucki

Mariusz Zalucki (Andrzej Frycz Modrzewski Krakow University College) recently published an article entitled, Testamentary Succession, New Technologies and Recodification: On the Research that Needs to Be Conducted, Societas Et Iurisprudentia 2014, Vol. II No. 2.  Provided below is the abstract from SSRN:

In view of the fact that one of the main tasks of modern inheritance law is to connect the available legal structures with the shape of property relations existing in the society and to favour solutions which enable to make the most of the testator’s estate after his or her death, the author concludes that a research needs to be conducted to examine what consequences in this field of law follow, inter alia, from the wide availability of audio and video digital recorders, and what are legal consequences of registering the last will of the testator using such equipment, e.g. if in such context, can we call a videotestament a newly developing form of estate disposition. In this scope projects should search for connections between the above-indicated technical equipment and the possibilities of fulfilling the last will of the testator, to analyze if they may be useful for applying the principle of testamentary freedom present in inheritance law and to explain if the application of such equipment by the testator will facilitate or hinder the execution of testator’s will mortis causa.

September 25, 2014 in Articles, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2014

Yahoo Criticizes Digital Asset Legislation

Yahoo

Many questions arise when it comes to addressing what should come of our personal digital communications after we die?  Should they be treated like physical letters for the purposes of a will?

Yahoo does not think so.  The company is now criticizing new legislation that gives executors charged with carrying out the instructions in a person’s will broad access to their online accounts.  Delaware recently passed legislation titled the “Fiduciary Access to Digital Assets and Digital Accounts Act.”  The measure removes some of the red tape that an estate attorney or other fiduciary would otherwise have to go through to gain broad access to the deceased’s online accounts. 

In a recent blog post, Yahoo stated that the expanded access violates the initial agreement users entered into when they started using services.  “When an individual signs up for a Yahoo account, they agree to our terms of service, which outlines that neither their account nor the contents of their private communications are transferrable at the time of death.” 

Yahoo’s terms of service say it may delete an account and all of the data if it is shown a copy of the person’s death certificate.  The company argues that the new legislation does not offer the correct means to providing a family or fiduciary the information they need when dealing with the loss of a relative.   

See Zach Miners, Yahoo Slams New ‘Digital Will’ Law, Says Users Have Privacy When They Die, PC World, Sept. 15, 2014.

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

September 23, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2014

Estate Planning with Smartphones

Smartphone

With the release of the new iPhone 6, it is becoming more apparent that smartphones are relied upon to make lives a lot easier.  From checking the weather to buying stock, there is almost nothing these phones cannot do.  In Australia, an individual came up with another innovative use for his smartphone when he used it to prepare his Last Will and Testament shortly before taking his life.

Karter Yu typed his Will on the notes application installed on his iPhone, titling the document his “Last Will and Testament.”  When challenged, the Supreme Court of Queensland, Australia declared the electronic document to be the Will of Mr. Yu.  Thus, the document was admitted to probate.  The court specifically noted that the document contained the decedent’s signature and was automatically time and date stamped by the phone. 

While this is a unique example as to how technology is molding estate planning, it is not recommended that individuals use the same “do-it-yourself” digital approach.  Because technology is advancing rapidly, electronic communications can be easily lost or outdated.  Furthermore, these communications may fail to meet the traditional requirements of testamentary formalities.

See Are iWills the Way of the Future? The National Law Review, Sept. 19, 2014.

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

September 21, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Technology, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, September 19, 2014

Cemetery Utilizes Technology to Create Interactive Experience

CemeteryCemeteries can be more than simply a place to bury our dead and mourn, but also a place of educational value and cultural growth. The Arnos Vale Cemetery in Bristol filled the role of a community park and offered activities such as yoga lessons and walking paths. Then they added technology and created an interactive way for visitors to honor the dead, which resulted in Future Cemetery.  Future Cemetery utilizes multimedia to create an interactive environment, including projection, audio, guided tours through phone applications, and live reenactments. View a video of Future Cemetery’s use of technology here.

See Plus Aziz, How Will we Mourn the Dead in the Future?, PSFK, Sept. 16, 2014.

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

September 19, 2014 in Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Sunday, September 14, 2014

Article on Defining Parentage for Lenders of Genetic Material

Lynda Wray BlackLynda Wray Black (University of Memphis - Cecil C. Humphreys School of Law) recently published an article entitled, The Birth of a Parent: Defining Parentage for Lenders of Genetic Material, Nebraska Law Review, Vol. 92, 2014. Provided below is the abstract from SSRN:

With the advances in assisted reproductive technology, the scholarly quest for an all-inclusive legal definition of parentage has proliferated. All too often this quest becomes muddled in Constitutional tangles, in shifting mores, in quagmires of evolving and inconsistent legal parameters on what constitutes a “family”, and in the perceived need to reconcile conflicting state laws governing marriage, adoption and surrogacy contracts. This article suggests a return to the basics. Parents are born with the birth of a child. Notwithstanding the scientific breakthroughs in reproductive technology and the more inclusive modern understanding of the family unit, every child begins with two (and only two) suppliers of genetic material and one (and only one) gestational carrier. Thus, the only logically clear starting point for a legal definition of parentage begins with these three claim-holders to parentage. Once the examination of the concept of parentage is disentangled from the complications of related, but logically independent, legal questions, it becomes clear that unless and until the rights and obligations of parentage are either (voluntarily) contractually waived or (involuntarily) judicially or statutorily terminated, the law must recognize as parent any individual (regardless of his or her gender, sexual orientation or marital status) who is biologically related to a child.

September 14, 2014 in Articles, Estate Planning - Generally, Science, Technology | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Estate Planning for Digital Assets

Computer 2

The Anderson family recently lost their nineteen-year-old son and is now seeking access to his text messages, e-mails, and Facebook account to find out more about the moments leading up to his tragic death.  The family is hoping to get 20,000 signatures to an online petition asking the Minnesota State Legislature to pass a law clearly authorizing fiduciary access to a deceased person’s digital data. 

This is an unfortunate scenario that illustrates the importance of planning ahead for your digital property.  It is essential to arrange for full access to your data to keep estate administration costs down, to provide for a smooth estate administration, and to ensure that none of your valuable or significant digital property is overlooked.  Contact your estate-planning attorney to include plans for your digital property in your estate plan.  Make sure this plan specifies your wishes about your property and appoints a fiduciary to act on your behalf with respect to your digital property, during incapacity and after death.  Furthermore, ensure that your estate planning documents authorize the companies that hold your electronic data to release that data to your fiduciaries during your incapacity and after your death, which is important for the Stored Communications Act’s privacy protections.

See Jim Lamm, Video Clip: Family Wants Access to Son’s Digital Data After Death, Digital Passing, Sept. 10, 2014.

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

September 11, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

Article on Posthumously Conceived Children

Daniel Perrone

Daniel C. Perrone (London Fischer LLP) recently published an article entitled, Breaking the Ice: Expanding the Class of “Issue” to Include Posthumously Conceived Children, 27 J. Civ. Rts. & Econ. Dev. 369-392 (2014).  Provided below is a portion of the article’s introduction:

In New York, some innocent children, namely, posthumously conceived children, are suffering the consequences of the state legislature's failure to sync the law with technology. Advancements in biotechnology have enabled people to conceive genetically related children, even after their own death. These children, however, face the dire consequence of being denied inheritance rights, referred to herein as a "class gift," merely because of the circumstances surrounding their birth. Admittedly, posthumously conceived children do not come into the world the way the majority of children do, but they are children, who should be granted the same rights, benefits and privileges that other children enjoy.

August 24, 2014 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Saturday, August 23, 2014

Questions Remain in Delaware's Digital Asset Law

Computer 2

Last week Delaware Governor Jack Markell signed into law legislation permitting Delawarean families the right to the digital assets of loved ones who are incapacitated or deceased, the same way they would be given access to physical documents.  Yet many people do not realize that our Twitter, Facebook, and email accounts are not our only online assets. 

The new Delaware law raises the complexities of how to deal with the accounts that house our e-book collections, music and video libraries, or even game purchases, and whether they can be transferred to family and friends after death.  While the bill broadly states digital assets include “data, audio, video, images, sounds, computer source codes, computer programs, software, software licenses,” the law also states these assets can be controlled by the deceased’s trustees only to the extent allowed by the original service’s end user license agreement (EULA). 

I have previously stated that the Delaware statute does not override this feature of Amazon’s, or most, EULAs, which are protected by other forms of federal law.  The bill is not designed to change an asset you could not transfer into one you can. 

Although tech companies have been dealing with some of the issues surrounding the accounts of the deceased, they have not specifically addressed the effect of EULAs on the fate of any products purchased with those accounts after someone has passed.  For now, estate planners are coming up with creative solutions.  Some planners suggest setting up a trust and using it to purchase digital assets.  In naming themselves and children as trust beneficiaries, they can pass down e-books or music without breaking any ban on third party transfers.

See Ariel Bogle, Who Owns Your iTunes Library After Death? Slate, Aug. 22, 2014.

Special thanks to Howard M. Zaritsky for bringing this article to my attention.

August 23, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2014

Article on Digital Estate Planning

Technology

Kathleen Farro (Independent) recently published an article entitled, The ‘Digital First Sale Doctrine’: A Necessary Piece of the Digital Estate Planning Puzzle, (July 15, 2014).  Provided below is the abstract from SSRN:

As technology advances, the aspects of our lives that are played out in the digital realm, both personal and professional, are ever-increasing. We conduct our banking online, we communicate with friends, family and business associates via email and social networks, and we create original, creative works on internet-based applications. Our creative work, professional work, and practical communications that were once limited to oral communication and paper records are now captured, conveyed, and stored digitally. Trading tangible media for the digital realm has become commonplace. Some changes are as simple as the box of photographs stored in the closet that are being replaced by expansive online libraries of digital photographs. On a grander economic scale, for example, is the marketability of a celebrity persona that was once measured by his or her ability to promote products in a newspaper print ad or on a television commercial. Now, the number of people accessing that celebrity’s life, opinions and preferences in the digital realm can have an equal or greater financial effect. 

While this evolution can have many advantages in our every day lives – making thinking, doing, communicating, and working - easier, quicker, more efficient, and less expensive, it can also jeopardize things that we may take for granted in our purely "tangible" life. The digital age may decrease our actual, human interactions and compromise our privacy. It may reduce what may be considered "our property" in the tangible world to something owned and controlled by others when carried out in the digital realm. Within the conversion to a digital world, our property rights, and thus our ability to convey and devise those to others, may, quite literally, get lost in translation. 

The property rights we most frequently give up to carry on life in the digital realm are those that are carried out and promulgated within a framework of copyright-protected material. For example: email, Facebook, Twitter, and various "gaming" activities are copyright-protected. 

For estate planners, these facts present hurdles to carrying out the wishes of those who desire to transfer some of their digital "property" to their loved ones, friends, or others either by devise or within an inter vivos trust. For example, a man may spend years building an iTunes library of music. At $0.99 to $1.29 a song, and likely more in the future, he may invest thousands of dollars over the years in this collection. Upon his death or disability, he may wish to transfer this library to his children. The current law does not allow this; the point at which he himself is unable to use the library, there is no way in which any party can lawfully utilize that song library.

This paper will examine the property rights individuals generally hold in copyrighted material and digital copyrighted material. It provides a thorough explanation of the First Sale Doctrine as applied to tangible media and the limitations on its applicability in the digital realm. It then goes on to explain Congress’s first attempt at incorporating digital media into the First Sale Doctrine in 1998 – what conclusions it drew and why Congress declined to update the doctrine. Between technological advancements, court cases in the U.S. and overseas, and various other legal principles and practices, there are now substantial policy bases for revisiting a "digital" First Sale Doctrine. The implementation of a digital First Sale Doctrine would have far-reaching effects; however, for our purposes, this doctrine would at least provide individuals with assurance that their digital property can be preserved to pass along to others.

August 22, 2014 in Articles, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2014

Missouri Amends State Constitution to Add Protection for Electronic Communication

LaptopDigital asset protection is a growing concern for individuals and planners. Last week, Missouri amended their state constitution to expressly protect “electronic communications and data” from search and seizure the same as other property. However, it is still unclear what the implications of this constitutional addition will be.

See Eugene Volokh, Missouri Voters Amend Constitution to Expressly Protect “Electronic Communications and Data”, The Washington Post, Aug. 6, 2014.

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

August 15, 2014 in Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)