Wills, Trusts & Estates Prof Blog

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

Monday, May 22, 2017

New Mexico 2017 Legislative Report

Land splitThe 2017 New Mexico Legislature considered over 1000 bills and 43 Constitutional Amendments during its sixty-day session. Two bills of some interest that were approved by both Houses were the Uniform Fiduciary Access to Digital Assets Act (UFADA) and the Uniform Partition of Heirs Property Act (UPHPA).

UFADA is designed to extend the traditional power of a fiduciary to manage tangible property to include management of an individual’s digital assets. The act would allow fiduciaries to manage web domains, computer files, and virtual currency. It still restricts access to texts, email, and social accounts without prior consent from the client.

UPHPA is designed to protect family wealth from real estate speculators. A devise of property that creates tenants-in-common leaves each tenant with the power to force a partition of the property. Occasionally, speculators will purchase a small amount of an heir’s property in order to file a partition action and force a sale. The speculator will then purchase the property at a severe discount, depleting the family’s wealth in the process. UPHPA provides beneficiaries with certain rights in order to prevent this practice.

The Governor has a limited time period to act on most of the legislation approved during the recent session.

See John W. Anderson & Mark Anderson, NMBA Legislative Report, New Mexico Bankers Association, March 20, 2017.

May 22, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Legislation, Technology | Permalink | Comments (0)

Saturday, May 20, 2017

Article on Dealing with Digital Property in Civil Litigation

MatrixJeremy de Beer & Tracey Doyle recently published an Article entitled, Dealing with Digital Property in Civil Litigation, Wills, Trusts, & Estates eJournal (May 2017). Provided below is an abstract of the Article:

This article aims to shed light on the conceptual, doctrinal and practical issues regarding digital property law by weaving together several facets of the subject. Legislative schemes for the digital environment have emerged to cover some issues but not others. The debate about further statutory reform to deal with digital property is ongoing. Litigated cases in Canada are becoming increasingly common, and those that arise tend to be complex and significant. With this article, we facilitate better understanding of digital property issues among the bench and the bar, and offer a principled approach to legal policymakers grappling with law reform in this context. The approach we put forward is one based on technological neutrality, in the substantive functional sense not the minimalist notion of media neutrality.

We begin by providing important historical perspective on the debate about digital property rights, tracing its evolution over the past 20 years. We then canvass six distinct areas of law where digital property issues are engaged: the legal definition of digital assets as property; the protection of digital property against damage; dealing with digital property in life and on death; digital property and privacy rights; jurisdiction over cyberspace; and the technological regulation of digital property.

After discussing the most significant legal developments during the past two decades, we conclude with strategic insights for judges, practitioners and others faced with digital property issues in the future. We show how substantive technological neutrality can serve as a guiding principle connecting each of the digital property doctrines we review.

May 20, 2017 in Articles, Current Events, Estate Administration, Technology | Permalink | Comments (0)

Friday, May 19, 2017

Virtual Reality Helping Dementia Sufferers

4063D61E00000578-4510896-image-a-28_1494941292204The progression of dementia can be a slow and agonizing process for both those afflicted and for the people who love and care for them. Difficulty recalling precious memories is among the prominent and more terrible symptoms associated with this disorder. There is some new hope for individuals struggling with dementia, and it comes from an unexpected source. The Oculus Rift headset, a virtual reality system capable of immersing the user in a virtual world, has been integrated into a therapeutic package. The package includes a number of relaxing scenes ranging from beaches, to forests full of animals, to a view of Earth from space. The user maintains varying levels of control in each of the simulated scenes. The goal is to refresh the memories of dementia sufferers. Many who have used the headset recalled memories correlated to the scenes they were shown. The kit also includes a number of activity cards healthcare professionals may use in conjunction with the device that have specific questions used to pinpoint particular memories. While the system has shown some promise, it does not come cheap at a cost of just over $5,000.

See Shivali, Touching Moment a Virtual Reality Headset Helps Elderly People with Dementia Recall Precious Memories, Daily Mail, May 16, 2017.

May 19, 2017 in Current Events, Disability Planning - Health Care, Elder Law, Science, Technology | Permalink | Comments (0)

Tuesday, May 16, 2017

How Gene Testing Is Threatening Long-Term Care Insurance

Gene testingApproximately 5.5 million Americans have Alzheimer’s disease, making up half of all nursing home residents, but very few people have been tested for the ApoE4 gene. Last month, however, the gene testing company 23andMe started offering tests that reveal whether people carry the gene, while assessing their risks for developing certain conditions. Following the wave, other genetics companies are planning to offer similar tests, allowing many Americans to get a better grasp on their medical futures. Although a benefit to the American people, insurance companies selling long-term care insurance might experience a disaster, sending risky patients in search of policies and damaging an already fragile business. The potential impact of gene testing has the ability to increase adverse selection, which in turn could impact the availability and affordability of certain products.

See Gina Kolata, New Gene Tests Pose a Threat to Insurers, N.Y. Times, May 12, 2017.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

May 16, 2017 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Wednesday, May 10, 2017

Surgeon Claims Frozen Brains Will Be Placed in Donor Bodies by 2020

Frozen brainAn Italian surgeon, Professor Sergio Canavero, is going on record, claiming that people will be brought back from the dead within the next three years by placing their brains in donor bodies. Canavero plans to carry out the first human head transplant next year and then move onto transplanting frozen brains into donor bodies, using those cryopreserved bodies located at the Arizona-based Alcor Life Extension Foundation. Indeed, brain transplants have advantages, including little to no immune reaction.

See Shivali Best, Frozen Brains Will Be ‘Woken Up’ and Placed in Donor Bodies by 2020, Claims Controversial Surgeon, Daily Mail, April 27, 2017.

May 10, 2017 in Current Events, Death Event Planning, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Monday, May 8, 2017

Article on What to Do with Your Digital Assets

Digital assets actGeorge H. Pike published an Article entitled, Legal Issues: What to Do with Your Digital Life (2014). Provided below is an abstract of the Article:

The accumulations of life are taking on a more digital appearance. We have Facebook and Twitter profiles, we post and share pictures and videos through Instragram and YouTube, we have accounts on Amazon and eBay, we may accumulate and spend Bitcoin assets or pay with things with PayPal, we create avatars in WarQuest and other games as well as create and spend digital (even tangible) assets within the games, and we communicate through Gmail and text. Even the accumulations of life that were once analog have gone digital, with bank and investment accounts now accessed through passwords rather than passbooks, our reading is ebooks on our Kindle’s and our music listening is through iTunes. Access to these digital environments is often maintained privately, through userIDs and passwords not generally shared with family and friends who may become heirs and executors.

The established structure of inheritance law has been challenged to deal with many of these aspects of our digital life. Some items seem relatively straightforward, such as online bank and brokerage accounts. Assuming the heir (or more likely, the executor of the estate), knows about the accounts, the established structure of presenting a death certificate or court order to the bank should authorize access. But do the same rules apply to PayPal or bitcoin?

May 8, 2017 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Saturday, May 6, 2017

Legal Issues of Dead but In-Demand Actors

Princess fisherWhen Carrie Fisher died, Princess Leia did not have to die with her. Celebrities should be considering legacy planning, or the planning of a celebrity’s public persona, as one aspect of estate planning. This type of planning can be complicated because the laws have not caught up to technology’s ability to posthumously resurrect characters onscreen. Posthumous protections vary by state, so it is important to appoint someone you trust to handle your post-death career.

See Ashley Cullins, Carrie Fisher, ‘Star Wars’ and the Legal Issues of Dead but In-Demand Actors, Hollywood Reporter, May 1, 2017.

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

May 6, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Film, Technology | Permalink | Comments (0)

Friday, May 5, 2017

Article on Property Interests in Digital Assets

Digital assets actNatalie M. Banta recently published an Article entitled, Property Interests in Digital Assets: The Rise of Digital Feudalism, 38 Cardozo L. Rev. 1099 (2017). Provided below is an abstract of the Article:

The emergence of digital assets has created a host of new legal questions regarding their status as a property interest. Digital assets consist of intangible interests like e-mail accounts, social media accounts, reward points, and electronic media. These assets seem like a property interest, but because digital assets are a creature of contract, private contracts determine whether an owner can use, sell, transfer, exclude, donate, or dispose of the asset in a testamentary instrument. These digital asset contracts often take an unprecedented step of prohibiting or severely limiting the transfer of digital assets after death. By unilaterally eviscerating a long cherished right of property--the right to devise--these contracts create digital assets that are more akin to a license or tenancy instead of a fee simple absolute. Contractual terms controlling digital assets create a system this Article calls “digital feudalism,” characterized by absolutism, hierarchy, and a concentration of power. This Article examines property interests imbued in digital assets, namely the rights to use, control, exclude, and transfer. It analyzes digital assets under the labor, utilitarian, and personhood theories to justify their existence as a form of property. As a form of property, this Article argues that property law protects an individual's rights to her digital assets--rights like testamentary disposition that cannot be contracted away. Property law has always mirrored society's decisions about how to control and allocate resources and our treatment of digital assets are no different. Digital assets themselves function so similarly to property that we must apply traditional property law principles to ensure that our rights over digital assets do not regress into an anti-democratic and archaic form of feudalism in a technologically driven future.

May 5, 2017 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Tuesday, May 2, 2017

How Family Wealth Map Can Help You Organize Your Estate

Richard foxRichard Fox launched Family Wealth Map, LLC, which helps wealthy families and their advisers better manage information. Fox’s clients are families with estates ranging from $10 million to over $1 billion, making for complex estate structures. Family Wealth Map uses software that synthesizes the client’s information and presents the data to the clients and their advisers. The company allows clients and advisers to spend their valuable time on planning as opposed to gathering information, dubbing the software a “master filing cabinet” and helping families build wealth.

See Robyn Dexter, Family Wealth Map: Organize Your Estate, Ladue News, April 27, 2017.

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

May 2, 2017 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Friday, April 21, 2017

Controversial "Three-Parent Baby" Procedure Takes Off in Mexico

Three baby“Three-parent babies,” a new procedure offered to couples who want to reduce the risk of passing specific genetic diseases to their children, is a term that has drawn much attention from the public recently. The procedure has also been viewed as controversial because the embryo takes eggs from two separate mothers and transfers the nucleus from a mother’s egg to a donor egg that had its nucleus removed, which makes its ban in the United States unsurprising due to the potential spreading of defected mitochondria. Currently, Mexico, where medical professional believe they are on the vanguard of medical research, is one country that offers the procedure, possibly due to its weak regulatory framework.

See Jan-Albert Hootsen, Controversial ‘Three-Parent Baby’ Fertility Technique Takes Off in Mexico City, Fox News, April 18, 2017.

April 21, 2017 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)