Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Wednesday, May 21, 2014

Article on Addressing the Claims of Posthumously Conceived Children to Survivor Benefits

Stork-babyJennifer Foor (University of Hawai’i Law Review) published an article entitled, Beeler v. Astrue: Addressing the Claims of Posthumously Conceived Children to Survivor Benefits, 34 U. Haw. L. Rev. 309-327 (2012).  Provided below is an excerpt from the introduction:

Innovations in reproductive technology provide couples facing infertility or terminal illness with previously unimagined possibilities for family planning. "[A]ssisted reproductive technologies enable conception to take place even after the provider of the gamete has died. Gametes can be harvested and cryopreserved . . . prior to the provider's death or retrieved from him post-mortem, and then used . . . to impregnate a woman with genetic material . . . whose providers are no longer alive." 1 These medical developments have made it possible for a child to be conceived after the death of a parent with few regulatory obstacles. 2 Many couples are choosing to cryogenically preserve gametes in anticipation of infertility caused by medical treatments, 3 or death from disease or war. 4 While preserving reproductive material for conception at a later time is no longer on the cutting edge of medical development, the legal consequences of posthumous conception continue to work their way through the courts, and federal legislators have yet to address the resulting issues head-on. 5

A number of cases springing from the birth of posthumously conceived children have risen to the federal courts of appeal. These cases result from disputes over a posthumously conceived child's rights to Social Security survivor's benefits. In the absence of applicable regulation, this collision between technology and law has led to circuit splits and at least one case pending review by the United States Supreme Court. 6

Beeler v. Astrue 7 is one such case rooted ...

May 21, 2014 in Articles, Estate Planning - Generally, Non-Probate Assets, Science, Technology | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2014

New Bill Tackles Digital Asset Disputes in Estate Planning


The Delaware General Assembly will address legislation concerning estate planning in the digital sphere.  A recent bill by Rep. Darryl Scott would require companies such as Google to relinquish control of users accounts to a trusted person outlined in their will.  Companies would be required to give estate executors access to accounts within 30 days of a request or face civil penalties. 

While privacy concerns exist, Scott says there are safeguards built into the proposal.  “They’re concerned about user privacy as well and I have that concern…People can designate assets that they don’t want to be included as part of their estate.” 

If approved, this bill will be the first comprehensive law of its kind.  Seven other states grant different levels of access. 

See James Dawson, Bill Seeks to Address Digital Asset Issues in Estate Planning, Delaware Public Media, May 16, 2014. 

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

May 19, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Apps to Aid Accountability


Oftentimes, the impulse behind the choices investors make is centered on their confidence—confidence in the future and around risk.  Advisors understand that managing client perception and client anxiety is an important task, but can prove to be very difficult.  However, there are tools available that can give advisors help, particularly consumer-facing programs that reps can co-opt and use to push their clients in a better direction. 

  • Stickk. Stickk lets users sign an online contract for any goal they want to meet, for example, losing weight, completing a degree, or sticking to a budget and getting out of debt.  Stickk’s premise is based on research around “commitment contracts,” which can help people achieve goals by giving them tangible incenitves.
  • Beeminder. This forces users to make a commitment to a goal and set certain progress points that must be met each week.  Falling off track requires a payment to Beeminder, which can be a powerful incentive.
  • Planwise. This app allows users to visualize how financial choices affect their bottom line.  Users enter several choices in the app, and the app projects forward to show how financial decisions today affect future savings. 

See Lauren Barack, Apps to Change Financial Behavior, WealthManagement.com, May 13, 2014. 

May 15, 2014 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Saturday, May 10, 2014

Article on Solutions to the Digital Estate Planning Dilemma


Jaime Patrick Hopkins (The American College) and Ilya A. Lipin (Villanova University School of Business) recently published an article entitled, Viable Solutions to the Digital Estate Planning Dilemma, 99 Iowa L. Rev. Bull. 61 (Apr. 2014).  Provided below is the abstract:

Countless people are dying without proper digital estate plans in place, leaving billions of dollars of assets unaccounted for in the digital world. This is occurring in part because individuals are often unaware that traditional estate planning tools and techniques, such as wills, are ill-equipped to handle the unique challenges of digital estate planning. As a result, the majority of Americans are vastly unprepared for their digital afterlife, unintentionally foregoing digital estate planning altogether and leaving their assets trapped in a digital purgatory.

With the ongoing growth in our reliance on technology, interaction via social media, digitization of individual’s property, and further advancement of new Internet technologies, the amount and value of our digital assets are growing exponentially. In response to this immediate need for digital estate planning and management of digital assets, some businesses began to offer their users the ability to plan for the disposition of their digital assets upon their death. However, due to the novelty of this area of law, the business solutions currently afforded often leave more questions than answers about what happens to the individual’s digital assets, raise concerns about privacy and security, and augment disputes over their overall effectiveness in the estate plan. This Essay examines the importance and increasing prevalence of digital assets, discusses the challenges facing traditional estate planning in the growing world of digital assets, and suggests a workable strategy for the creation of a well-developed and manageable digital estate plan. 

May 10, 2014 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Friday, May 9, 2014

Article on Managing Digital Property


James D. Lamm (Gray Plant Mooty), Christina L. Kunz (Professor Emerita, William Mitchell College of Law), Damien A. Riehl (Robins, Kaplan, Miller & Ciresi), and Peter John Rademacher (William Mitchell College of Law, J.D. Candidate 2014) recently published an article entitled, The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries from Managing Digital Property, 68 U. Miami L. Rev. 385 (Winter 2014).  Provided below is the introduction:

The digital world is a popular place these days. In its fourth quarter of 2012, Facebook reported 618 million daily users. In fiscal year 2012, Google reported 235 million active users across its properties (e.g., Gmail and YouTube); Activision Blizzard estimated over 9.6 million subscribers to World of Warcraft; and the list goes on. The United States's Internet use ranks among the highest--both in number and percentage of population. Members, users, and subscribers (“account holders”) accumulate digital property by uploading photographs, videos, and other data, investing time into profile development, adding written material, and building their own subscribership accounts.

How should this property be managed during the account holders' lives? Upon the account holders' deaths, what should happen to it? How should it be maintained? How should it be distributed? As one author notes, “[M]ore and more of what happens in the [physical] world is also seeping into the [digital] world . . . .” That includes our need for fiduciaries in many aspects of life and death. Every single Internet user will die, many will suffer some form of incapacity, and some will have valuable or significant digital property that needs to be protected and managed. In the physical world, legal mechanisms can address these issues.

Other bodies of law do not impede these mechanisms, which have evolved over hundreds of years, but the digital world is like the “Wild West,” in that its growth has outpaced legal and regulatory efforts. Although federal and state governments have enacted laws to control aspects of the digital world, some of these laws predate the World Wide Web and stand as inadvertent barriers to the execution of fiduciary duties in the digital world. State legislatures, private entities, and courts have made some efforts to correct these problems, but no current solutions provide the level of certainty that account holders and courts typically seek in fiduciary property management. Consequently, account holders are uncertain about the future of their digital property; fiduciaries must choose between refusing to manage digital property at the risk of civil liability, and executing their duties at the risk of criminal liability. Additionally, digital service providers (“service providers”) must fend for themselves by carefully crafting their terms of service (“TOS”) and privacy policies (“PPs”). 

This article discusses four types of fiduciaries, each of which is affected by the vast growth in and the need to manage digital property. The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate administration, and trusts. 

After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and service providers and providing the level of security sought in fiduciary property management, as well as a best-practices approach in the interim to a complete solution.

May 9, 2014 in Articles, Estate Administration, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Proposed Law on Digital Assets


So far, companies have largely maintained control over who should be granted access to digital accounts once someone dies.  But a proposed law by the Uniform Law Commission could swing control in families’ favor.

The recently drafted “Fiduciary Access to Digital Assets Act (FADA)” would grant fiduciaries broad authority to access, and control, digital assets.  The Commission will vote on this proposed law in July.  Many estate lawyers hope states will widely adopt this model law.  Currently, seven states have enacted their own laws while fourteen have proposed legislation.

See Maeve Duggan, Proposed Law Would Clarify Who Gets Access to a Deceased Person’s Digital Accounts, Pew Research Center, May 6, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

May 8, 2014 in Estate Administration, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, May 5, 2014

Article on the Uniform Fiduciary Access to Digital Assets Act


Samantha D. Haworth (University of Miami Law Review; J.D. Candidate 2014) recently published an article entitled, Laying Your Online Self to Rest: Evaluating the Uniform Fiduciary Access to Digital Assets Act, 68 U. Miami L. Rev. 535 (Winter 2014).  Provided below is her introduction: 

On July 27, 2012, a teenage girl named Alison Atkins passed away from colon disease. Her family turned to her online accounts for consolation and answers. The family had to circumvent the teen's computer password and use her computer's automatic log-in function to access Alison's Twitter, Facebook, Tumblr, and email accounts. Alison's online accounts contained conflicting characterizations of her life--happy family pictures and dark, private journals. Whether Alison wanted her online life viewed after her death was unknown. Nevertheless, the family's control over these accounts was fleeting, as the accounts eventually logged out or got deleted, and the contents were lost forever.

When Internet users die without planning for their digital lives, families and estate executors are left to guess the users' wishes. Families may violate terms of service agreements and battle with Internet service providers to access digital property that the deceased never wanted others to access. Discussing the Atkins family, journalist Geoffrey A. Fowler wrote, “[T]aking hold of Alison Atkins's digital afterlife forced her family to tread a line between celebrating her, and invading her privacy. In the process, her family discovered some dark journals Alison clearly meant to conceal. ‘She had passwords for a reason.”’

Handling digital assets after death presents numerous practical, legal, and moral problems. Accounting for all of one's assets and rounding up the requisite passwords comprise the first step to managing a digital estate. Professors Gerry W. Beyer and Naomi Cahn suggest drafting a separate document to supplement a will with log-in information to protect the testator's privacy because probated wills become public record. Beyer and Cahn suggest designating how each asset should be handled, such as which assets should be deleted and which ones should be kept and by whom. This approach is helpful in accounting for all of one's property, but it does not fully address how a family member or personal representative of an estate can implement these wishes legally.

This Note will explore the world of digital assets and how legislation can ensure the proper disposition of decedents' online selves. Part I explores the different kinds of digital assets and how courts deal with these assets in multiple types of litigation. Part II discusses the legislative solutions currently in place and under consideration for handling digital assets at death. Part III analyzes the Proposed Uniform Fiduciary Access to Digital Assets Act and discusses its innovations and shortfalls. Part IV examines what types of control fiduciaries should be allowed to exercise over digital assets. Finally, this Note will conclude with recommendations on how to best improve the Uniform Act.

May 5, 2014 in Articles, Estate Administration, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Article on Digital Planning


Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) and Amy Ziettlow (Institute for American Values) recently published an article entitled, Digital Planning, 28 Prob. & Prop. 23 (May/June 2014).  Provided below is the introduction:

In 2013, U.S. Trust commissioned a survey of over 700 high net worth individuals.  Although three-quarters had a will, almost the same number did not have a comprehensive estate plan, and more than half had made no plans for their digital lives.  2013 U.S. Trust Insights on Wealth and Worth: Key Findings, www.ustrust.com/publish/content/application/pdf/GWMOL/UST-Key-Findings-Report-Insights-on-Wealth-and-Worth-2013.pdf.  Yet high net worth individuals are the group most likely to use the Internet.  Trend Data (Adults), Pew Internet, www.pewinternet.org/Static-Pages/Trend-Data-(Adults)/Whos-On-line.aspx.  As we place increasing amounts of our lives on-line—from paperless banking statements to photos to medical records to customer databases—planning for our digital lives becomes correspondingly important.  Moreover, some forms of digital property have economic value; consider the virtual sword for the on-line game that sold for $16,000 or the domain names that sell for millions of dollars.  Or consider the fees that would accrue if your clients did not pay credit card bills accessible only on-line while they were incapacitated.  Digital property (by which we mean Internet accounts and data stored on-line) also has personal, emotional, and social value: an on-line photo album can store years of treasured memories, a Facebook page can record an individual’s significant events and personal thoughts, and a computer may store the great American novel.

In this article, the authors discuss recent developments that affect how estate planners can advise their clients on the disposition of digital property, and how individuals, regardless of their net worth, can approach management of their digital assets.  The authors first look at the risks of not managing assets, and then turn to (1) the Uniform Law Commission’s process of developing model legislation, (2) the need for digital estate planning to consider financial assets as well as issues relating to social and emotional issues, and (3) the benefits and drawbacks of the increasing number of companies offering planning programs.

May 5, 2014 in Articles, Estate Planning - Generally, Non-Probate Assets, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 30, 2014

New App for Advance Directives


My Health Care Wishes is a new app developed by the ABA’s Commission on Law and Aging that allows you to store your advance directives on your smartphone.  In an effort to make advance directives more easily accessible in the event of an emergency, this app lets you present advance directives, health information, and contacts via email or Bluetooth.  The digitally transmitted documents have the same legal authority as a signed and witnessed paper document.

The free version of this app lets you store one person’s information while the $3.99 Pro version offers unlimited storage for your family members.  Other digital ways to store advance directives include DocuBank and MyDirectives

See Paula Span, The Documents You Need, When You Need Them, The New York Times, Apr. 24, 2014.

Special thanks to Jerry Cooper for bringing this article to my attention.

April 30, 2014 in Disability Planning - Health Care, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2014

Legacy Planning Options


Robert De Niro recently told Esquire magazine his biggest regret:

I always wanted to chronicle the family history with my mother. She was always interested in that. I wanted some researchers I’d worked with to talk to my mother, but my mother was a little antsy about it. I know she would’ve gotten into it . . . But I wasn’t forceful, and I didn’t make it happen. That’s one regret I have. I didn’t get as much of the family history as I could have for the kids.

Today, we have opportunities to preserve family histories that never existed before.  To capture a client’s legacy, advisers should suggest a few simple options such as an ethical will or legacy letter, some insightful questions for the client to answer, or a videotaped legacy interview or personal documentary.  Advisers should also suggest that a client digitize existing artifacts like photos, letters, and other family documents.

See Victoria Collins & Jane Shafron, Legacy Planning in the Digital Age, Wealth Management, Apr. 21, 2014.

April 29, 2014 in Estate Planning - Generally, Film, Technology | Permalink | Comments (0) | TrackBack (0)