Wednesday, January 18, 2017
Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.
Much of the 2016 legislative activity involved the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). At press time, 20 states had enacted a version of RUFADAA. This innovative new law ensures that fiduciaries who manage the property of decedents and incapacitated persons will have access to on-line property and accounts as necessary.
Sunday, January 15, 2017
Rest assured Star Wars fans, Lucasfilm, the movie’s production company, claims it has no plans to digitally recreate Carrie Fisher’s character, Princess Leia, in upcoming films. This announcement comes shortly after several celebrities became worried about their posthumous portrayals. Further, the company insists that it will always strive to honor Fisher’s legacy and in doing so will not use digital effects.
See Carrie Fisher: Princess Leia Will Not Go Digital . . . Lucasfilm Promises, TMZ, January 13, 2017.
Sunday, January 1, 2017
After Carrie Fisher’s death, much speculation remains over how her character will be portrayed in future, unproduced Star Wars films. Today, filmmakers are using digital technology to resurrect characters after that have passed, but this is leaving actors eager to gain control over how their characters and images are posthumously portrayed. Understanding that their legacy will continue beyond life, stars are making plans to protect their intellectual property rights. Currently, California law gives heirs control over a famous family member’s posthumous profits by requiring their permission for the use of their likeness. As technology improves, however, more actors are concerned with stipulating their legacy. For example, Robin Williams banned the use of his image for commercials until 2039 and prevented anyone from digitally inserting his image into a film or show. Obviously, the use of performers’ likeness has economic value, so it is a matter of how these films and actors can agree on posthumous portrayal.
See Reuters, Actors Rush to Protect Their Image from ‘Digital Resurrection’ After They Have Died Following Eerie Star Wars: Rogue One Reanimation of Carrie Fisher, Daily Mail, December 31, 2016.
Saturday, December 31, 2016
Matthew W. Costello recently published an Article entitled, The “PEAC” of Digital Estate Legislation in the United States: Should State “Like” That?, 49 Suffolk U. L. Rev. 429 (2016). Provided below is an abstract of the Article:
This Note explores the legal implications of recent digital assets legislation, suggested model legislation, and the future for digital estate planning generally. First, this Note delineates the current state of federal law governing digital assets. Additionally, this Note considers the consequences of Terms of Service (TOS) contracts in relation to the preservation of and access to digital account contents. Next, this Note tracks the history and development of state legislation concerning postmortem digital assets. Further, this Note surveys the development and implementation of suggested model legislation.
This Note argues that federal and state law can coexist in this arena, as recent state law is complementary, not incompatible, with federal laws governing digital communications. Further, this Note emphasizes the unique privacy concerns relevant to digital asset management, arguing sweeping state legislation that categorically divulges private account contents neglects the important privacy interests associated with such digital property. Additionally, this Note highlights the importance of deferring to the decedent account holder's intent when determining whether fiduciary access or control over account content is appropriate after death. This Note discusses areas of strength in current model legislation, namely the Privacy Expectation Afterlife and Choices Act (PEAC), which provides a useful example for states seeking to adopt comprehensive legislation recognizing the intimate and private nature of online property, even after death. This Note concludes suggesting a court ruling is necessary to clarify the law concerning postmortem digital assets.
Thursday, December 22, 2016
The Memory Care unit at a Bronx medical facility is utilizing robotic therapy pets to soothe those with varying degrees of dementia and Alzheimer’s. Agitation and anxiety often plague these types of patients, so nursing facilities are using furry robotic friends to reduce the stress and isolation that accompanies the disease. Companies, like Joy for All Companion Pets, are making robotic pets that come in various models and cost considerably less than previous years. Ideally, these robotic pets allow patients to exchange companionship and experience serenity.
See Andy Newman, Therapy Cats for Dementia Patients, Batteries Included, N.Y. Times, December 15, 2016.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Wednesday, December 21, 2016
Alberto B. Lopez recently published an Article entitled, Death and the Digital Age: The Disposition of Digital Assets, 3 Savannah L. Rev. 77–89 (2016). Provided below is a summary of the Article:
If being a personal representative was not sufficiently difficult, the advent of the digital age has only increased the burdens placed on those willing to undertake the role on behalf of a decedent. The seemingly ever-expanding usage of digital devices means that individuals increasingly handle many routine aspects of life online. Banking, shopping, and communication are done, at least in part, online by a substantial number of people. For personal representatives, a decedent’s online footprint creates access difficulties because many online accounts are password protected. A decedent may have received and paid utility bills, for example, via an online account without any paper record of the transaction; therefore, a personal representative may have trouble closing an account with a utility provider without the account’s password. Given the number of online accounts used by most people, living individuals may have trouble remembering their own usernames and passwords, let alone finding such information for an unknown number of online accounts held by a decedent.
Even if passwords are discovered by a personal representative, accessing the account may be construed as a violation of the terms of the service agreement between a decedent and a service provider. For example, Karen Williams sought access to her son’s Facebook account following his death, but did not have the password to the account. Eventually, Williams gained access to the account after receiving “a tip” from one of her son’s friends. Accessing her son’s account, however, violated Facebook’s terms of service regarding unauthorized access; therefore, Facebook changed the password to the account thereby barring William’s access. In response, Williams brought suit to regain “full and unobstructed” access to her son’s account. Although the court ruled in her favor, the relief granted Williams only ten months of access to the account. At the expiration of the ten-month access period, Facebook terminated the account.
Tuesday, December 20, 2016
Elizabeth D. Barwick recently published an Article entitled, All Blogs Go to Heaven: Preserving Valuable Digital Assets Without the Uniform Fiduciary Access to Digital Assets Act’s Removal of Third Party Privacy Protections, 50 Ga. L. Rev. 593 (2016). Provided below is a summary of the Article:
Part II of this Note will give a detailed overview of the existing and proposed laws governing access to a decedent's digital assets, as well as the co-existing and often conflicting terms of service agreements and federal statutes, which the UFADAA purport to override. Part III will consider an alternative statutory scheme under which judges would have ex-post discretionary power to balance the privacy interests involved in each case with the need for access. Part IV will subject the hypothetical scenarios laid out above to the various statutory schemes in order to see how a balancing of interests might reveal whether the policies behind the current laws, as well as the UFADAA, are really being furthered by broad access.
Thursday, December 15, 2016
IVF treatment is becoming more and more popular with medical advancements. Consequently, we should start to see an increase in the amount of lawsuits over embryos. Family law is governed by the states, so there is little unified guidance on how these types of cases should be handled. There is, however, a rough consensus on the issue—if there is a contract, you must follow it. If no agreement, the main exception is that the embryos can be used if it is one party’s last chance to become a genetic parent. With this decision, it is important to remember that the embryos were created with the full knowledge and consent of both parties. Another issue that will come to volition is how to classify these embryos. Should family law apply, or are the embryos considered property? With such uncertainty surrounding this issue, it is important that people carefully consider the outcomes when choosing IVF.
See Angela Chen, Who Owns Frozen Embryos?, Verge, December 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.
Monday, December 12, 2016
When it comes to retirement, people usually underestimate how long they will live and overestimate future returns. Life expectancy, which increases every year, depends on a person’s age. This can result in too little savings for a person’s life, especially in an age of medical advancements. Ignoring the probability that you will live longer, only creates more stress and poverty at a time when it matters most. Accordingly, it is important to use more conservative life expectancies when planning for your retirement.
See Henry K. Hebeler, Good News and Bad News: You May End Up Living a Lot Longer than You Expect, Marketwatch, December 12, 2016.
Friday, December 9, 2016
Do you want to see how you will look when you are old? AgingBooth is a new app that uses your pictures and instantly ages your face. This face aging machine can be downloaded to your iPhone or iPod Touch and used on your family, friends, or colleagues. Are you ready to face your future?
See AgingBooth, Pivi & Co.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this app to my attention.