Wills, Trusts & Estates Prof Blog

Treasure Hunter Loses Bid to Find His Treasure

Nathan Smith, a musician, was inspired by the movie National Treasure and began hunting for his own booty.  Using Google Earth, he thought he found the site of a sunken ship bearing $3 billion worth of Southwest of Houston, and confirmed it when he visited with a metal detector.  Smith filed a lawsuit seeking property rights to the treasure, claiming the ship lies beneath navigable waters.  The landowner where the waterway is located opposed. 

It appears that after two years of litigation in Smith v. The Abandoned Vessel, the district court ruled against Smith and his appeal to the Fifth Circuit has been denied. 

This setback may not stop Smith, however, who said in 2008 that for three years he had been seeking "the Lost Dutchman's gold mine, the Franklin Mountains treasure, Jesse James' buried treasure, Belle Starr's iron door, the Lost Peg Leg gold and numerous others." 

Mary Flood,Fortune hunter believes he has Googled gold, Houston Chronicle, Dec. 30, 2008; see also Justia.com on Smith v. The Abandoned Vessel. 

Special thanks to Boyd K. Johnson (attorney, Vest & Johnson) for bringing this interesting story to my attention.

The Ramifications of Post-Mortem Sperm Retrieval

Mary F. Radford (Professor of Law, Georgia State University College of Law) has recently posted on SSRN her article entitled Post-Mortem Sperm Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows.

Here is an abstract of the article:

This article was prepared in conjunction with the Thurgood Marshall School of Law March, 2009 symposium on "Emerging Issues in Estate Planning, Probate & Trust Law." The article examines a relatively new assisted reproduction technique through which the sperm of a man who has recently died is retrieved after his death, cryopreserved, and then later used by a woman (spouse, partner, or other) to produce a child. While much has been written about posthumously-conceived children (children conceived from sperm that were banked by the father while he was alive), there has to date been little examination of the ramifications of post-mortem sperm retrieval. The article explores whether children who are born through use of this technique will be entitled to their father's property or governmental benefits as the father's surviving issue. The article examines in depth the arguments in Vernoff v. Astrue, a case that is currently under consideration by the federal Court of Appeals for the Ninth Circuit. The child who is the subject of this case is reportedly the first child who was born using posthumously-retrieved sperm. Her mother has sought Social Security benefits for the child, citing numerous other cases in which the Social Security Administration or the federal courts have granted such benefits to posthumously-conceived children. The article explains how the interaction among state parentage law, state probate law, and the Social Security Act will be used by the court to make a determination in this and subsequent cases.   

Digital Estate Planning

Another article is available on the importance of including internet passwords, which are inevitable in an increasingly on-line world, in an estate plan. 

More information on this subject can be found in previous posts here and here, and in the recent article by Deborah L. Jacobs, When Others Need The Keys to Your Online Kingdom, NY Times, May 20, 2009.

Consenting to A Posthumous Child

In a student comment, Amanda Horner discusses the range of approaches for determining if a parent consented to a posthumous child and suggests a method for courts to adopt when making this determination.  Amanda Horner, Comment, I Consented to What?: Posthumous Children and the Consent to Parent After Death, 33 S. Ill. U. L.J. 157 (2008).

Here is part of the introduction to her comment:

The confusion over whether a person has properly consented to parent a posthumous child is clear. States require anything from the marriage of the parents prior to the decedents' death to a written consent form, signed and dated much like a will. This comment advocates enacting a bright line to determine parental consent; just as sexual intercourse leads to consent to parent a child, the court should establish a similar provision that determines the consent of a posthumous child just as readily. Specifically, Section II of this comment will briefly discuss the technology that allows for the conception of posthumous children. Section III will discuss the cases which have thus far attempted to decipher consent and current law in conjunction with posthumous children. Finally, Section IV will discuss which method the courts should adopt when determining consent.

Planning for Digital Estates

Earlier on this blog, I discussed the importance of planning for a client's on-line matters such as passwords, e-mail accounts, Facebook pages, etc. and posted a list of companies which offer helpful services.

Planning for digital estates received additional coverage recently in Mallory Simon, New services promise online life after death, CNN.com, May 18, 2009.

Special thanks to Sara Hudman (Attorney, Lubbock, Texas) for bringing this article to my attention.

CALI to sponsor Social Media Best Practices Workshop

The Center for Computer-Assisted Legal Instruction (CALI) is conducting a Social Media Best Practices Workshop at its 19th Annual Conference for Law School Computing on June 18, 2009 at the University of Colorado Law School in Boulder, Colorado.

Here are some additional details from Gene Koo, Social Media Best Practices Workshop at CALI Conference 2009, VVV:V, May 1, 2009:

[The] workshop [will] help law schools develop sensible guidelines for their students on the use of social media (e.g. MySpace and Facebook). A few examples of bad online behavior has made some schools understandably wary of technologies that might expose their students in an unflattering (and unemployable) light. Yet social media are growing in importance as networking tools that can connect lawyers with potential employers and clients in positive ways.

The Social Media Best Practices Workshop builds on the work of Laura Bergus (Iowa College of Law), who felt that her own school was accentuating the negative and ignoring the positive value of online social media. Ms. Bergus, a guest blogger on Social Media Law Student, began a campaign to reform her school’s policies and won the buy-in of her administration. This triggered the thought that other schools might also be seeking better policies and guidelines for their students.

Our goal for the Workshop is to generate best practice suggestions for law schools. We also hope to start a nationwide discussion among law schools on how to approach social media and its potential interaction with students’ current performance and future career prospects.

Keeping an eye on your dead relatives and friends

It is becoming increasing common to keep a watchful eye on your children, property, elderly parents, and a less than trustworthy spouse by using a web cam and the Internet.

Pollica, Italy, a city of less than 3,000 living inhabitants, will now offer for sale tombs outfitted with video and audio equipment connected to the Internet.  The city will sell 150 of this high-tech tombs to permit physically distant friends and relatives to commune with the deceased. 

The mayor of Pollica is reported as saying that "A Web cam will be operational 'round the clock and there'll also be a new sound system to give them a feel of the meditative atmosphere."

See Italian town to have graveyard Web cam, UPI.com, April 23, 2009.

"The Codicil" recognized by Law Technology News

The Codicil, the on-line companion to the Estate Planning & Community Property Law Journal at the Texas Tech University School of Law was recently recognized in Robert Ambrogi, WEB WATCH: Academic Innovation, Law Technology News, April 2009.

Here is an excerpt from the article:

Law schools have long been innovators online. It was at a law school, after all, that the first web browser was developed for Microsoft Corp.'s Windows. To begin to list some of these trailblazers would simply exclude too many others.

Recent projects launched online with the support of law schools show that there is no waning of clever and useful ideas coming from law students and faculty. Here are some examples: * * *

Estate planning forum. Students at the Texas Tech University School of Law recently launched The Codicil * * as an online companion to the school's Estate Planning and Community Property Law Journal * * *.

The journal is the only studentled law journal devoted to national coverage of estate planning, community property, and related legal topics. Founded in 2007, it recently published its first edition.

The Codicil is intended to supplement the print journal with articles, comments, book reviews, case-law updates, and other pertinent information related to estate planning and community property.

The editors hope the site will allow further discussion and exploration of articles published in the print edition and also highlight additional topics. "We hope the site will become a useful and dynamic resource," they write.

As you can see, innovation online is alive and well at law schools throughout the country.

Happy April Fools Day

Happy April Fools Day!!

I hope you are not deceived today!

Important Note:  Be sure that your computer's anti-virus program's defintions are up-to-date so you are not infected with the Conficker virus.  For more information, see McNelly Torres, Computer worm is no April Fool's joke, Baltimore Sun, March 31, 2009.

Do you need Twitter?

Having joined Facebook years ago at the urging of my students, I am now wondering whether I need to take the "next step" and use Twitter.  Personally, I sometimes wonder why I even care what I'm doing at the moment, much less whether the entire world cares.

So, is Twitter just a "voluntary" Big Brother or does it have real value?

For a very interesting discussion of the value of Twitter in the legal community, see Robert Ambrogi, Tweet 16: 16 Ways Lawyers Can Use Twitter, Legaline.com, March 20, 2009.  His article describes the following 16 potential benefits:

1. Expand your network
2. Discover new blogs
3. Mold your image
4. Distribute your news
5. Drive traffic
6. Simulate the water cooler
7. Message your colleagues
8. Monitor the buzz
9. Get noticed by news media
10. Keep up with your local court
11. Track activity at a conference
12. Follow the government
13. Promote an event or seminar
14. Get more mileage
15. Find clients
16. Locate experts

Note:  Just to experiment, I did sign up under the user name Gerry_Beyer.

Planning for Digital Estates -- Updated Company List

Earlier on this blog, I discussed the importance of planning for a client's on-line matters such as passwords, e-mail accounts, Facebook pages, etc. and posted a list of companies which offer helpful services.

Here is an updated list in alphabetical order:

• www.assetlock.net [formerly, YouDeparted]

• www.deathswitch.com

• www.eternitymessage.com

• www.greatgoodbye.com

• www.lastpost.com

• www.legacylocker.com

• www.slightlymorbid.com

• www.VitalLock.com

If you know of another company, let me know and I will add it.

Note:  If you are a law student looking for a Comment topic, you may want to write about planning for the digital estate and then doing a detailed comparison of the services offered by these companies. 

Planning for Digital Estates -- Company List

Earlier on this blog, I discussed the importance of planning for a client's on-line matters such as passwords, e-mail accounts, Facebook pages, etc.

I am now being contacted by representatives of these companies and others regarding their services.

Below is a list of the companies I have so far.  If you know of another, let me know and I will add it.

Note:  If you are a law student looking for a Comment topic, you may want to write about planning for the digital estate and then doing a detailed comparison of the services offered by these companies. 

• AssetLock (formerly, YouDeparted)

• Deathswitch

• Legacy Locker

• Slightly Morbid

More on planning for digital estates

Earlier on this blog, I discussed the importance of planning for a client's on-line matters such as passwords, e-mail accounts, Facebook pages, etc.  Some people are also finding it important to plan for the demise of their on-line game identities such as the one created when playing the popular game World of Warcraft.

The following excerpts are from Peter Svensson, Death leaves online lives in limbo, USA Today, March 16, 2009:

When Jerald Spangenberg collapsed and died in the middle of a quest in an online game, his daughter embarked on a quest of her own: to let her father's gaming friends know that he hadn't just decided to desert them.

It wasn't easy, because she didn't have her father's "World of Warcraft" password and the game's publisher couldn't help her. Eventually, Melissa Allen Spangenberg reached her father's friends by asking around online for the "guild" he belonged to. * * *

With online social networks becoming ever more important in our lives, they're also becoming an important element in our deaths. Spangenberg, who died suddenly from an abdominal aneurysm at 57, was unprepared, but others are leaving detailed instructions. There's even a tiny industry that has sprung up to help people wrap up their online contacts after their deaths. * * *

David Eagleman, a neuroscientist at the Baylor College of Medicine in Houston, has had plenty of time to think about the issue. * * *

He set up a site called Deathswitch, where people can set up e-mails that will be sent out automatically if they don't check in at intervals they specify, like once a week. For $20 per year, members can create up to 30 e-mails with attachments like video files. * * *

If Deathswitch sounds morbid, there's an alternative site: Slightly Morbid. It also sends e-mail when a member dies, but doesn't rely on them logging in periodically while they're alive. Instead, members have to give trusted friends or family the information needed to log in to the site and start the notification process if something should happen. * * *

A third site with a similar concept plans to launch in April. Legacy Locker will charge $30 per year. It will require a copy of a death certificate before releasing information.

Planning for "Digital Estates"

A new company, Legacy Locker, will provide a service to handle, in a comprehensive manner, a decedent's "digital estate."  The company, based in San Francisco, plans to begin service in April 2009.

Here are some excerpts from the company's website:

Legacy Locker is a safe, secure repository for your digital property that lets you grant access to online assets for friends and loved ones in the event of death or disability.

If you are an estate planner, financial planner, or trusts & estates attorney then you know how vital it is to plan for the future disposition of assets in the event of a client's death or incapacitation. Legacy Locker is a safe, secure repository for digital property that lets one grant access to online assets for friends and loved ones in case of death or disability.

While the work you do today helps your clients prepare their physical assets, there's virtually nothing in place for dealing with online assets. By now you've probably already experienced circumstance where a bereaved client has tried to gain access to the online accounts of a loved one who has passed away, and found that many online companies and websites are ill prepared or simply unwilling to grant access to anyone but the account holder. Legacy Locker is a new tool for you to use in building an estate plan for your clients.

We use a completely secure and independent system with greater than bank-level security to ensure that our customers’ private information stays secure and is accessible only by them. We help them, and you, prepare for the eventual dispersal of their assets, including access to their online accounts.

Our mission is to help our clients prepare for the future, and we feel that aligns well with your mission. If you’re interested in learning more about Legacy Locker, please click here to get in touch. We want you to stay at the top of your field, and help you prepare your clients for the future.

See also Sharon Gaudin, Last Wishes: Eternal Life Online?, PCWorld, March 11, 2009.

Digital Wills

Joseph Karl Grant (Associate Professor of Law, Capital University Law School) has recently published his article entitled Shattering and Moving Beyond the Gutenberg Paradigm: the Dawn of the Electronic Will, 42 U. Mich. J.L. Reform 105 (2008).

Here is an excerpt from the article's introduction:

Legislators in Nevada have already acted to modernize the law of wills [by allowing for wills and trusts to be in digital format]. This Article advocates that other states follow their lead and depart from what is described as the “Gutenberg Paradigm” by adopting similar legislation and embracing electronic technology. Part One of this Article explores the history of print, Johann Gutenberg's role in this development, and the emergence of the “Gutenberg Paradigm.” Part Two examines the history and policy underpinnings of will execution formalities, and the role of the “writing” requirement. Part Three explores the use of electronic wills as conforming and nonconforming testamentary instruments. More specifically, Part Three highlights some of the pitfalls and shortcomings of the Nevada electronic wills statute and proposes a model wills statute that could be adopted by states wishing to modernize their wills statutes to allow for the creation of electronic wills. Part Three also provides other simple approaches for modernizing state wills statutes. Finally, Part Four outlines some basic anticipated concerns and criticisms regarding electronic wills and responds to those concerns and criticisms.

Off Topic -- The Rise of the Machines: Should it be criminal to abuse a machine?

I think it is safe to say that everyone agrees that abuse of humans and animals is criminal conduct.  But, what about the abuse of a machine?

As machines, such as the toy Tickle Me Elmo, take on human characteristics, there is a growing movement to criminalize acts to a machine that would be criminal if done to a human or animal.  For a disturbing video showing Elmo being abused, see Torture Me Elmo, YouTube.com.

In fact, according to Daniel Roth, Do Humanlike Machines Deserve Human Rights?, Wired, Feb. 2009, at 23:

It's already being considered overseas. In 2007, a South Korean politician declared that his country would be the first to draw up legal guidelines on how to treat robots; the UK has also looked into the area (though nothing substantial has come of it anywhere). "As our products become more aware, there are things you probably shouldn't do to them," says John Sosoka, CTO of Ugobe, which makes the eerily lifelike robot dinosaur Pleo.

The article also explains:

As technology develops animal-like sophistication, finding the thin metallic line between what's safe to treat as an object and what's not will be tricky. "It's going to be a tougher and tougher argument to say that technology doesn't deserve the same protection as animals," says Clifford Nass, a Stanford professor who directs a program called the Communication Between Humans and Interactive Media Lab. "One could say life is special—whatever that means. And so, either we get tougher on technology abuse or it undermines laws about abuse of animals."

US / Canadian Law School Outline Wiki and Law Firm Wiki

The following is posted as a courtesy to Jonathan Kleiman, founder of the US / Canadian Law School Outline Wiki and Law Firm Wiki:

I am a law student and I run a website that I believe would be very useful to your readers, that I was hoping that I could entice you to blog about.  It is a wiki, like wikipedia, for law students. There are a bunch of outlines up already, and there's some good info on firms for job applications. The site is www.legalintellects.com.

Firms can add and edit their own profiles as well... and it's only getting better and better as it's a wiki.

Let's be honest... law school outlines are very helpful for lawyers.

People should know that they can get outlines from the site, and that they can email legalintellects@gmail.com if they want to send outlines to be posted or if they want to get more involved.

Facebook "Trusts and Estates Attorneys" group formed

Jill L. Miller (Jill Miller & Associates, P.C., New York, NY) has recently created a Facebook group entitled Trusts and Estates Attorneys.  According to the description:

 

This is a group for trusts and estates attorneys to share ideas and recent legal developments, network and discuss common issues and challenges facing our area of practice.
 

Jill explained to me that this group is for T&E attorneys who have at least two years of experience in any area: private practice, government, academia, family offices, banks and brokerage firms.  She anticipates that the group will be national and international in scope to network and exchange ideas with colleagues all over the world.
 

If you are interested, please go to the group’s home page and click on “Request to Join Group” option near the top of the right-hand pane.

Getting information to survivors at the right time

A person's survivors (heirs, beneficiaries, individuals with survivorship rights, etc.) need to know about their about their rights.  However, many people to not want to entrust all of this personal information to these people "too early," that is, while they are alive.  On the other hand, it is important that these people do receive the information when the time is right, and not "too late."

iGoodbye attempts to solve this problem.  Here is an excerpt from their website:

Many of us have information about assets, financial accounts, and personal data that we would like to see passed on privately to ours heirs that we may be hesitant to share before we have actually departed this world.

iGoodbye.com is a simple, easy to use and inexpensive service that holds your electronic documents in trust during your lifetime. Documents are released to the recipients you specify only after we verify that you have passed away.

Typically clients store copies of wills, trusts, account passwords or special instructions to heirs. Clients can leave a message, a recorded message or video, a list of instructions or details about their assets to heirs after their death, without having to give out this information before that time.

In this day and age of computer passwords and account numbers, knowledge is power, and many of us are hesitant to prematurely give this type of information even to trusted loved ones. iGoodbye.com distributes the information you designate to recipients only after we have verified a death certificate with the local authorities.

We provide a military grade encryption tool on our website that is very easy to use. Even better, do your own encryption. We show you how.

When an heir contacts us seeking their documents, we request a death certificate and verify its authenticity by directly contacting local authorities. In addition we request proper ID to verify that the person contacting us is in fact your intended recipient.

For a brief review of this service, see Robert Ambrogi, Super-Powered Web Sites Hit the Jackpot, Law.com, May 19, 2008.

Special thanks to Benson Varghese (J.D. Candidate, Texas Tech University School of Law) for bringing this website to my attention.

Protecting Estate Planning Information & Documents

The following is a description of a potentially valuable service provided by Estate++.   This description was supplied through the courtesy ofJames Bell, Vaulting Systems International.

Maintaining secure personal and financial information through natural disaster, theft -- even death and incapacity – is an on-going challenge for many individuals. If estate documents can not be found when needed then it is as if these documents never existed. But a new Internet-based system is now available to legal and financial advisors who realize the importance of planning for the next generation and securing their clients' future.

Estate++ (www.estateplusplus.com) was developed in response to the need for quick and reliable access to information for estate settlement and emergency purposes. It is a subscription service that advisors resell to their clients. Basic functionality includes a comprehensive set of data entry screens to record important information, organization of entered information into a single PDF file, a personal vault that contains important files which are uploaded and downloaded as needed, and sharing of important information with trusted parties.

Estate++ (www.estateplusplus.com) is a comprehensive, cost-effective marketing and client retention tool. By helping your clients take a proactive approach you help them to avoid the unnecessary pain and anguish that comes from not being prepared. This personal touch conveys a powerful message, effectively saying “We care about your future”. This service can also be offered to your client’s heirs, beneficiaries, family members, and friends. The referral aspect is priceless because it encompasses the entire family.

Those of you wanting to build a better practice and become client-focused should be very interested in something like this.