Wednesday, October 19, 2016
Recently, during discovery in a will contest, a New York Surrogate court forced the drafting attorney of a will to fork over his computer. In In re Nunz, the court found that there was a “proper basis” for the attorney to turn over of his computer, helping to resolve uncertain issues regarding the execution of the will. The decedent had drafted a will leaving out five of his six children from a previous marriage; accordingly, they contested the will when documentation for the will’s preparation went allegedly missing from the drafting attorney’s computer. At a hearing, the court held that the electronically stored information was “clearly discoverable” for the children to obtain the material and necessary information. This case represents another example of how electronically stored information finds its way into a proceeding.
See Brian Spiro, Drafting Attorney’s Computer Inspected for Evidence in Will Contest, Florida Probate Lawyers, October 18, 2016.
Monday, October 17, 2016
Elizabeth Ruth Carter recently published an Article entitled, Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, LSU 46th Annual Estate Planning Seminar (2016). Provided below is an abstract of the Article:
These materials were prepared in conjunction with the LSU 46th Estate Planning Seminar. They explore the various types of digital assets--including social media (Facebook, Twitter, Linked In, etc.), audiobooks, music and video files, and bitcoin--and the estate planning challenges these assets present. These material also consider the federal estate and gift tax issues posed by digital assets, including questions related to small business valuation.
Our digital collections of music and books can expire at our death, causing family members to lose a huge chunk of change. Normally, customers for digital content own a license to use the digital files without actually owning them. For example, Apple grants users nontransferable rights to use their content, according to your specific account. One lawyer is trying to combat this issue by creating software that acts as a legal trust for client’s online accounts, managing digital accounts and passwords. With such a significant portion of our assets being digital, this type of technology will become essential over the coming years.
See Quentin Fottrell, Who Inherits Your iTunes Library?, Market Watch, August 23, 2016.
Tuesday, August 30, 2016
Natalie M. Banta recently published an Article entitled, Death and Privacy in the Digital Age, 94 N.C. L. Rev. 927 (2016). Provided below is a summary 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.
Monday, August 29, 2016
There is huge competition for money managers fighting to oversee endowments. The business has grown into an almost $100 billion business, attracting stiff competition amongst banks, consultants, and boutiques. This area of money management represents a rare area of potential growth for those currently competing with index- and computer-driven strategies. University endowments also offer access to wealthy benefactors that can become future clients.
See Michael McDonald, Wall Street Redoubles Fight to Manage $100 Billion at Endowments, Bloomberg, August 29, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Wednesday, August 17, 2016
Melissa Gaied recently published a Note entitled, Data After Death: An Examination into Heirs’ Access to a Decedent’s Private Online Account, 49 Suffolk U. L. Rev. 281 (2016). Provided below is a summary of the Note:
In the Internet age, protecting the privacy interests of individuals who predecease their digital accounts has resulted in ongoing legal uncertainty. Much of the ambiguity stems from inconsistent regulation of digital privacy by federal and state governments, as well as private entities. On one hand, federal law prohibits Internet service providers from disclosing content without owner consent or government order. On the other hand, state judges grant court orders to grieving families, demanding that service providers, such as Facebook and Yahoo!, allow access to the decedent's account. Providers then argue that such disclosure orders constitute a breach of contract because of preexisting privacy terms between the user and the provider.
Further complicating the matter, some states have adopted legislation allowing a decedent's digital content to pass to his or her heir upon death -- similar to the treatment of personal property. Delaware recently enacted the most sweeping legislation, granting family members, executors, and heirs total control over the decedent's digital accounts -- including email, social media, and cloud storage -- the same way it grants rights over physical documents. Despite such legislation, web-providers continue to remain reluctant to disclose user content to grieving families.
In light of conflicting regulations, the right to privacy may, in fact, evolve as a posthumous right, similar to the evolution of the right to publicity and copyright. Although the event of death deprives a person of his or her privacy right, such deprivation becomes exceedingly difficult to defend in the context of personal online data because such data is immortal by nature. The Supreme Court acknowledged that digital content triggers greater privacy concerns due to the qualitative and quantitative nature of digital data. Nonetheless, American law, in comparison to other developed countries, does not traditionally value the dignity of the dead.
To understand the state of the controversy, this Note will begin with a historical discussion of the constitutional right to privacy and its evolution as it relates to digital privacy. Further, this Note will discuss how federal, state, and private actors regulate digital privacy and this Note will posit that a discrepancy exists among such regulations. This Note will then discuss how diverging regulations might trigger a debate in favor of a posthumous right to privacy, especially due to the lack of uniform regulation by federal, state, and private actors. The Analysis section will examine the evolution of copyright and the right of publicity into posthumous rights and the strategic use of such doctrines to preserve privacy after death. Finally, this Note will conclude with considerations of the future of a posthumous privacy right.
When loved ones leave unsettled, unorganized estates, it leaves ordinary families to play detective in a time of grief and stress. Not only is it hard to track down assets of a family member who dies without a will, it can also be hard to uncover financial assets of those with estate-planning documents because we live in an era of digital assets. Therefore, it is essential to do the proper detective work for any estate plan, including obtaining a family tree for inheritance and executor purposes. Another good idea is to develop spreadsheets detailing the estate’s assets and liabilities to lessen the need for playing detective.
See Jerilyn Klein Bier, Playing Detective, Financial Advisor, August 1, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) & Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Jared Walker recently published an Article entitled, Return of the UFADAA: How Texas and Other States’ Adoption of the RUFADAA Can Change the Internet, 8 Est. Plan. & Community Prop. L.J., 577 (2016). Provided below is a summary of the Article:
With the creation of the first public internet network in 1991, the world has never been the same. With people tweeting, swiping, snapping, and posting constantly, the fact that Facebook users post on average more than 350 million new photos each day should not impress anyone. Digital assets have three characteristics that make proscribing personal property law to their inheritance difficult: (1) they are a recently new invention; (2) they are intangible; and (3) they have differing contractual rights based on state and federal law. Recently, state legislatures have been trying to propose legislation modeled after the Uniform Fiduciary Access to Digital Assets Act (UFADAA), the Privacy Expectations Afterlife and Choices Act (PEAC), and Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which regulate the rights of the company and a beneficiary to a deceased's digital assets. Currently, a minority of states have adopted a strategy but most are actively debating the adoption of a fiduciary access to digital assets law.
Monday, August 1, 2016
On July 1, 2016, Indiana adopted the Revised Uniform Fiduciary Access to Digital Assets Act. The Act authorizes the utilization of an online tool to direct the user’s custodian to disclose or not disclose the user’s digital assets. The online tool allows the user to modify or delete directions at all times, so a user’s online direction detailing disclosure overrides a contrary direction in the user’s will, trust, power of attorney, or other record. So, for example, a direction made under the online tool will trump the specified agent under a power of attorney or any other estate planning document.
See Senate Bill 253, Indiana General Assembly 2016 Session.
Special thanks to Keith Huffman (Attorney, Dale, Huffman, & Babcock Lawyers) for bringing this Article to my attention.
Monday, July 25, 2016
Cheryl Tilse, Jill Wilson, Ben White, Linda S. Rosenman, & Rachel Feeney recently published an Article entitled, Having the Last Word? Will Making and Contestation in Australia (2015). Provided below is an abstract of the Article:
Increased longevity and the need to fund living and care expenses across late old age, greater proportions of blended and culturally diverse families and concerns about the increasing possibility of contestation of wills highlight the importance of understanding current will making practices and intentions. Yet, there is no current national data on the prevalence of wills, intended beneficiaries, the principles and practices surrounding will making and the patterns and outcomes of contestation. This project sought to address this gap.
This report summarises the results of a four year program of research examining will making and will contestation in Australia. The project was funded by the Australian Research Council (LP10200891) in conjunction with seven Public Trustee Organisations across Australia. The interdisciplinary research team with expertise in social science, social work, law and social policy are from The University of Queensland, Queensland University of Technology and Victoria University. The project comprised five research studies: a national prevalence survey, a judicial case review, a review of Public Trustee files, an online survey of will drafters and in-depth interviews with key groups of interest.
The report outlines key findings. On the basis of the evidence provided recommendations are presented to support the achievement of these policy goals: increasing will making in the Australian population, ensuring that the wills of those Australians who have taken this step reflect their current situation and intentions, and reducing will contestation.