Monday, July 21, 2014
Jason E. Havens recently published an article in the series, Technology Probate, Probate & Property, Vol. 28 No. 4, 48-50 (July/August 2014). Provided below is a portion of the article’s introduction:
As discussed in part one of this series, the modern trust and estates law practice faces new challenges in dealing with clients, one of the most critical of which is drafting and delivering high-quality legal documents that address each client’s issues and objectives. Part one of this two-part series focused on why to use a drafting system, where to use that system, and when to use it. Prob. & Prop., Mar./Apr. 2014, at 53. This second part of the series will discuss specific drafting systems: “who” is behind several of the leading systems, “what” they offer, and “how” to decide among them (or others).
Thursday, July 17, 2014
Many people fail to consider what will come of your online accounts when you die. While grieving relatives might want access for sentimental reasons or to settle financial issues, you may not want a spouse going through every single e-mail.
The Uniform Law Commission was on track Wednesday to endorse a plan that would give loved ones access to, but not control over, the deceased’s digital accounts, unless otherwise specified in a will. If the legislation is adopted by the legislature, a person’s online life could become as much a part of the estate plan as deciding what to do with physical possessions.
Privacy advocates are skeptical of the proposal. “The digital world is a different world from offline. No one would keep 10 years of every communication they ever had with dozens or even hundreds of people under their bed.”
While some tech providers have come up with their own solutions, the Uniform Law Commission’s proposed law would trump access rules outlined by a company’s terms of service agreement, although the representative would still have to abide by other rules including copyright laws.
See Anne Flaherty, What Happens to Your Online Accounts When You Die? Associated Press, July 16, 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.
Saturday, July 12, 2014
With nearly four billion registered e-mail accounts worldwide, a large aspect of estate planning concerns what happens to this information after we are gone. Entrepreneurs and legislative groups attempt to offer solutions and build awareness of the complications surrounding digital estate planning after death.
One of the problems with fiduciary access is that it may be a violation of federal privacy law or a computer fraud and abuse act. It may be a criminal act to violate the terms of service agreement. However, the inability to shut down a deceased loved one’s accounts could have unforeseen risks.
The year after someone passes is one of the most vulnerable times for identity theft. Thieves can use a dead person’s information to rack up credit card charges, apply for loans, or even file false tax returns. Even more frightening, much of this information can be found on the internet through something as simple as a shopping account.
To date, only seven states have laws governing online estate planning. Yet the committee on the Uniform Law Commission is attempting to change that by drafting the Fiduciary Access to Digital Assets Act, which would give fiduciaries the same rights over online estates as they have over physical estates. The bill is currently being reviewed by the Uniform Law Commission and will be voted on for approval on Wednesday. It will then be up to the state legislatures to propose the bill.
See Hari Sreenivasan, Dead and Online: What Happens to Your Digital Estate When You Die? PBS News Hour, July 11, 2014.
Thursday, July 10, 2014
Technology can be a valuable tool to get tasks that used to take hours of work done by an automated system, which frees up time for other tasks. This is true for wealth managers as well, and there are many types of trust technology systems out there that can do the tasks that can be handled by automated systems and allow the people to engage more with current and prospective clients. There are many types of systems that offer various services, including individual tools that specialize in an area and those that are an all-in-one approach.
See Scott Martin, Scope and Specialization Battle for Trust Technology Crown, The Trust Advisor, July 7, 2014.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, July 4, 2014
Technology has surpassed the law in the area of digital assets. Without clear legal avenues for how family members can access accounts after the account holder dies, many digital assets such as photos, emails, and personal information, are simply lost. Some states, like Virginia and Delaware, have enacted laws that address how digital assets are handled after the death of the account holder, but the law is largely behind the times on this issue. To make sure these assets are passed on, it is important for individuals to plan ahead, such as using private services that notify a designated list of individuals after their account becomes inactive or saving passwords on their computer.
See Thomas J. Fitzgerald, How to Digitally Avoid Taking It to the Grave, The New York Times, July 2, 2014.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Thursday, June 26, 2014
Sandi Varnado (Loyola University New Orleans College of Law) recently published an article entitled, Your Digital Footprint Left Behind at Death: An Illustration of Technology Leaving the Law Behind, 74 Louisiana Law Review. 719 (2014). Provided below is the abstract from SSRN:
Death has become more complicated than it used to be, in large part due to the digital age. Americans, particularly younger ones, spend a substantial portion of their waking hours on some sort of electronic device, with a large portion of that time spent online, and many predict the continuation of this trend. Yet, the law, still set in the pen and ink era, has failed to keep pace with technology in many contexts, including one’s digital footprint at death.
One’s digital footprint consists of the sum of his digital assets, and the average American’s digital footprint is valued at nearly $55,000. However, the majority of Americans have not planned for their digital footprint upon their death, due to neglect, concern over sharing information, underestimation of the value of the digital footprint, and/or anxiety over the magnitude of the digital footprint. As such, any estate plan is rendered incomplete, potentially leaving digital assets “adrift in cyberspace.”
The interests of various groups of people lead to competing policies on whether access to a decedent’s digital footprint should be allowed or denied. The law does not help. Louisiana, like most states, has no specific legislation in place to govern a decedent’s digital footprint, leaving traditional legal principles to govern technological advancements that did not exist and were probably not even anticipated at the time the laws in question were written. Thus far, the problems have not reached epic proportions, but that day is coming, and eventually, the digital footprint issue will become a serious problem.
This Article assesses the various interests triggered by the digital footprint issue, including efficient estate administration, the privacy interests of the decedent and those with whom he communicated, the interests of those left behind, the interests of online service providers that contracted with a decedent when he created his digital assets, and society. It also addresses the Gordian knot of overlapping and complicated legal analyses that the digital footprint issue triggers. The Article additionally details the Louisiana approach to the digital footprint issue, which is, as of now, only estate planning, and analyzes the various potential resolutions to the issue, highlighting the deficiencies of each. Finally, the Article proposes that both federal and state action is required to effectively handle the multitude of legal issues triggered by the digital footprint and provides a detailed scheme for both levels to do so.
Wednesday, May 21, 2014
Jennifer 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 ...
Monday, May 19, 2014
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.
Thursday, May 15, 2014
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.
Saturday, May 10, 2014
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.