Sunday, December 1, 2013
Jennifer Matystick (University of California Berkeley School of Law) has recently published an article entitled, Posthumously Conceived Children: Why States Should Update Their Intestacy Laws After Asrue v. Capato (Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2012.) 28 Berkeley J. Gender L. & Just. 269-292 (2013). Provided below is the abstract to the article:
On May 21, 2012, a unanimous Supreme Court held in Astrue v. Capato that posthumously conceived and biological children are only entitled to social security survivor benefits "if they qualify for inheritance from the decedent under state intestacy law, or satisfy one of the statutory alternatives to that requirement." 1 This decision gives the Social Security Administration its due deference under Chevron, 2 and also avoids the application of an outdated federal law to new assistive reproductive technologies, a fear voiced by some members of the Supreme Court during oral arguments. 3 However, the decision also highlights the need for more uniform and updated state laws concerning the inheritance rights of posthumously conceived children. By allowing states to determine whether posthumously conceived children may receive social security survivor benefits, the Court's decision may extend benefits to children not originally considered part of the core group of intended beneficiaries of the Social Security Act - those who were not technically dependent upon the deceased wage earner at the time of his or her death - but who are nonetheless deserving of such benefits. However, for that to happen, more states need to explore and adopt legislation that specifically addresses the status of posthumously conceived children. Indeed, many state laws are as outdated as the Social Security Act in the ways that they address assistive reproductive technology and posthumously conceived children. For application of state intestacy law to be truly a "workable substitute for burdensome case ...
Tuesday, November 26, 2013
Facebook has added a new application for users to deal with the passing of a loved one. It is called Sanctri. The app provides Facebook users with options like joining community groups that focus on grief counseling, creating social memorials, and raising funds for charity to commemorate the deceased. The app changes the language used on the Facebook page to instead of "following" someone you "remember" them and instead of "liking" something, you are "moved" by it. Users will still be in Facebook but away from the everyday communication. Sanctri was developed to "preserve the memory of those we've lost sensitively on Facebook."
See David Cohen How to Deal with Death on Facebook, Allfacebook.com, Nov. 22, 2013.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Monday, November 11, 2013
Seven states currently have laws granting fiduciary access to the online accounts of an incapacitated or deceased person, and at least eighteen other states are considering passing such a law. The Uniform Law Commission is also drafting a Fiduciary Access to Digital Assets model act.
These state laws granting fiduciary access may have a limited effect due to federal preemption or supremacy, especially the privacy protections under the federal Stored Communications Act. However, a court may conclude that state fiduciary laws, as well as the Uniform Law Commission’s model act, generally would not conflict with, or be preempted by, the Stored Communications Act.
Check out Jim Lamm’s Digital Passing Blog for background information on the Stored Communications Act, reasons why fiduciaries need access to online accounts, and his thoughts on federal preemption and supremacy.
See Jim Lamm, Thoughts on the Stored Communications Act, Federal Preemption and Supremacy, and State Laws on Fiduciary Access to Digital Property, Digital Passing, Nov. 4, 2013.
Saturday, November 9, 2013
Wealth Management is offering a webinar entitled, New Ways to Pay Estate- Related Costs: The Hidden Value of Personal Assets, on November 13, 2013 at 4:15 pm ET. A description of the webinar is below:
Do you have clients who, one day, may find themselves unable to pay estate-related costs? Insurance is not always a panacea—and an estate that has readily marketable assets may not have the liquidity to pay estate fees, taxes and other costs.
Traditional means of securing capital may be unavailable for clients who suddenly find themselves in need of cash. Thankfully, there are new options available. For example, alternative lending can provide another route to securing capital to pay estate fees, taxes, attorney fees and estate appraisal costs. And best of all, these alternative options address the urgency of clients' needs while leveraging the assets they can easily access.
Attend this webinar and learn:
- The most common financial challenges of trusts and estates clients
- Advantages of alternative lending approaches
- How to introduce alternative lending concepts to clients
- Case studies, illustrating effective, speedy liquidity solutions for trusts and estates
Thursday, November 7, 2013
Thomas E. Vass (The Private Capital Market) recently published an article entitled, Estate Planning for Technology Executives Engaged in Crowdfunding: Where Estate Planning for CEOs Meets Section 4(A)(2) and Regulation D Rule 506 (C), (October 14, 2013) Provided below is the abstract from SSRN:
Under Title II of the JOBS Act, commonly known as Accredited Investor Crowdfunding, technology company executives can publicly solicit potential investors. The major change in the new way of crowdfunding capital from the traditional venture capital method is that there will not be a period of time for private negotiations between the company and different groups of investors, under Reg D Rule 506(c).
In the new method, the CEO will establish the terms and conditions of the investment at the very beginning of the offering process, and like the Field of Dreams, if the investors like it, they will invest.
In order to avoid the allegation of fraud in a public solicitation, the technology company must prepare the terms and conditions of the offering before making public statements about the offering. Otherwise, what is said by the executive in public to one set of investors may turn out to be a false representation, if the company changes the terms with a second set of investors, in private, non-public negotiations over the terms.
Getting the offering terms and subscription agreements right from the start has serious implications for the estate settlement plans of the owners of technology companies. In other words, there is a critical nexus of financial and legal issues for the CEO between crowdfunding and estate settlement that the owners need to get right, before the crowdfunding project begins.
This article is a first effort to explore how estate settlement plans of technology executives change as a result of crowdfunding. This is a new area of law and finance, and the analysis provided in the four articles is speculative and untested by experience, so senior executives should be cautioned to seek legal counsel on how to adjust their current estate settlement plans, if they intend to engage in a crowdfunding project.
Tuesday, October 22, 2013
The American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE entitled, Private Wealth Planning in the 21st Century, on Tuesday, December 3, 2013. Participants can attend on-location in Philadelphia or by video webcast. Provided below is a description of the event:
Spend just one day focused on what you
need to know to best serve your private wealth clients during this
period of continuing economic and legal uncertainty and instability.
Register today for this CLE program on private wealth planning at which preeminent practitioners and academics from across the country will assemble, in person and via the web, to share their best insights, suggestions, and strategies. There will be no long lectures, only to-the-point presentations designed to target the essentials: the issues and tips that will be most important and useful to planners for the balance of 2013 and throughout 2014.
- a review of 2013 issues for estate planners
- planning techniques for same-sex couples
- how to handle a decedent’s digital identity
- impact of Taxpayer Relief Act of 2012 on your practice
- what’s new and what’s coming from Washington, DC
- and more!
Monday, October 21, 2013
Douglas and Matthew Blattmachr will also be on hand to discuss how their trust company is evolving to meet their clients’ needs. The panel will be moderated by Barbara Kotlyar. Spots are filling up fast so register soon.
Friday, October 4, 2013
As I have previously discussed, even people who believe they have a comprehensive estate plan may have overlooked what happens to their digital assets when they die. The idea is to address digital assets in your existing estate plan. Attorney coach, James Lamm, is teaching attorneys how to integrate specifics of digital estate planning.
Many people possess digital assets that may be of great value to them. However, the value of web domains, photos, videos, email, and social-media accounts may be lost if the owner does not take proper legal steps ahead of time. Digital estate planning is more complicated than traditional estate planning because the owner of assets is tasked with making sure to leave access to the heir. However, these sites may be password protected, encrypted, and governed by privacy laws. Lamm suggests some first steps that would help in the digital estate -planning process.
- Go through a test run and ask yourself if you were incapacitated today would your loved ones be able to gain access to your digital assets? Who would you want to have access?
- Keep a record of all of the things in your digital inventory with the user name and passwords.
- Keep a back up of your digital asset information.
- Reduce your plan to writing.
See Christine Benz, Do You Have a Plan for Your Digital 'Estate'?, Morning Star, Oct. 3, 2013.
Friday, September 27, 2013
Claudine Wong recently published an article entitled, Can Bruce Willis Leave His iTunes Collection to His Children? Inheritability of Digital Media in The Face of EULAs, 29 Santa Clara Computer & High Tech. L.J. 703 (2013). Here is the abstract of her article:
In early September, 2012, multiple news agencies reported that actor Bruce Willis was going to sue Apple for the right to pass his iTunes collection to his children upon his death. While the story ultimately proved to be false, it begs the question: Can Mr. Willis actually pass his iTunes songs, legally purchased but subject to a license agreement, to his daughters? We are increasingly acquiring digital music and e-books, copyrighted digital content with legally well-understood physical equivalents. As users pass away, their families are left to wonder if or how they can gain access to the deceased person’s digital assets, a problem they do not have with old fashioned physical assets.
In their traditional, print media format, music and books are protected by the first sale doctrine: when the owner passes away, his or her children can inherit that content; the children can then sell, give away, or discard the content. The publisher of the content cannot interfere with either the inheritance or the children’s ultimate disposal. The purchase of digital media, however, is universally governed by an “end user license agreement” or EULA. The purchase also universally requires creating an account with the content provider, an account also governed by a EULA. How do these EULAs restrict Mr. Willis’s ability to pass on his digital content? Can his children simply take control of his accounts, and thus have access to the content just as he did? Does the first sale doctrine apply to the digital content, thus allowing Mr. Willis to pass on his digital content, and his daughters to do with it as they like? We will conduct a careful examination of the EULAs for the most popular providers of digital music and e-books in attempt to answer the first two questions. The third question has, for the time being, been answered by Capitol Records, LLC v. ReDigi, Inc.: No, the first sale doctrine does not apply to digital media, it only applies to material objects.
A bare handful of states have passed legislation, in an attempt to deal with digital assets at depth, but these laws are too narrow to cover Mr. Willis’s situation. Thus it is left to the consumers to form digital estate plans. It is also left to the content providers to address the death of their users, either in their EULAs or in some other system.
Upon conclusion of this analysis, this paper will attempt to answer: Can Bruce Willis, in fact, pass his iTunes collection to his children?
Tuesday, September 24, 2013
Recently, Patrick Collinson, money editor of the Guardian, has proposed a solution for some of Britain's probate system shortcomings. One of the most difficult aspects of the probate process is establishing facts surrounding ones death. Some of these challenges include finding out where their accounts are and what policies they have. Something that helps alleviate this problem is having a will. However, the challenge with executing a will is making sure someone finds it when you die. Currently, there is not a central searchable registry for wills in the UK. Collinson is proposing adding a searchable registry that would allow the public to search if their loved ones had a will for a small fee. Thus adding a searchable registry alleviates some of the difficulty in the probate process.
See Patrick Collinson Estates Entangled in a Probate Trap, The Guardian, Sep. 20, 2013.