Wills, Trusts & Estates Prof Blog

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

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Saturday, November 29, 2014

Article on Probate Law in the Digital Age

Naomi Cahn

Naomi Cahn (George Washington University Law School) recently published an article entitled, Probate Law Meets the Digital Age, Vanderbilt Law Review, Vol. 67, 1697-1727; GWU Law School Public Law Research Paper No. 2014-55, GWU Legal Studies Research Paper No. 2014-55. Provided below is the abstract from SSRN:

This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act (“SCA”), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account.

While existing trusts and estates laws could legitimately be interpreted to encompass the new technologies, and while the laws applicable to these new technologies could be interpreted to account for wealth transfer, we are currently in a transition period. To fulfill their obligations, however, fiduciaries need certainty and uniformity. The article suggests reform to existing state and federal laws to ensure that nonprobate-focused federal laws ultimately effectuate the decedent’s intent. The lessons learned from examining the intersection of federal law focused on digital assets and of state fiduciary law extend more broadly to show the unintended consequences of other nonprobate-focused federal laws.

November 29, 2014 in Articles, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 4, 2014

Use of Technology Creates New Ethical Will Trend

LaptopThe old tradition of ethical wills has been transformed into a new trend with the use of technology. An ethical will is not a legal document, but is used as an estate planning tool that passes down wisdom. An ethical will can be used to give surviving family members and friends closure and hope, and helps to alleviate some of the stress of the process, which can aid with estate administration and the family dynamic during the mourning period. Some individuals are using videos, PowerPoint slide shows, and apps, such as StoryCatcher, to create ethical wills. Ethical wills created with the aid of technology can include music, pictures and video clips, and can be kept online on websites such as Dropbox.

See Constance Gustke, The Ethical Will, an Ancient Concept, Is Revamped for the Tech Age, The New York Times, Oct . 31, 2014.

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

November 4, 2014 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

Leaving Behind Digital Assets

Computer 2

Until recently, estate planning meant doling out items such as cash and securities, tangible personal property, jewelry and collectibles, and intangible assets like patents or shares.  Now there is a new category that must be addressed known as “digital assets.”

Digital assets refer to the footprints we leave behind as we increasingly live our lives online.  Many of us have digital assets in the form of e-mails, family photos, social media, and online bank accounts. 

While managing all the passwords and leaving records of them for your loved ones is confounding, there are two other issues.  The first issue is whether these assets are even transferrable.  For example, when you download iTunes, e-books and audiobooks, you are only receiving a life estate, which is the right to use something while you are alive, but not to pass it on to your heirs. 

The other problem centers around whether you can lawfully give other people access to your accounts.  A large portion of estate planning is appointing an individual to act on your behalf if you become disabled or die.  These people, known as fiduciaries, should have access to these accounts.  However, user agreements generally prohibit this since companies fear violating federal privacy laws.

Users should put precautionary measures in estate planning documents to give their fiduciaries access to the accounts.  This wording should go into a person’s will, living trust, and durable power of attorney. 

See Deborah L. Jacobs, The Digital Footprints That We Leave Behind, Forbes, Oct. 31, 2014. 

October 31, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2014

CLE on Using Technology to Meet the Challenges of Today's Trust & Estate Practice

CLEThe American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE entitled, Using Technology to Meet the Challenges of Today's Trust & Estate Practice, Wednesday November 12, 2014, 12:30 – 2:00pm Eastern, online and by phone. Here is why you should attend:

The complexity of an estate planning practice places great demands on your time and your intellect. What are some of the best technological tools that estate planners can use today?

Technology offers time saving benefits of not repeating mindlessly similar computations, and prevents math errors. Join Fellows of the American College of Trust and Estate Counsel for a scintillating discussion of the latest developments in technology for estate planning.

Faculty will discuss:

  • the great and not so great of Document Assembly Engine (DAE) solutions
  • suggested sites for commercial spreadsheets and information on preparing your own
  • tips for producing client diagrams and flowcharts
  • iPad and iPhone apps for trust and estate practitioners
  • free web site resources from The American College of Trust and Estate Counsel (ACTEC) and the ABA Real Property, Probate and Trust Law (RPTE) Section
  • research and other resources on the Internet for trust and estate practitioners

October 23, 2014 in Conferences & CLE, Estate Planning - Generally, Technology, Trusts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

New Estate Planning Tool: Estate Assist

Digital lock

A new online estate planning tool aims to help users store all of thier online passwords, social media accounts, digital health records, banking information, and other paperwork. 

Estate Assist works as an online safe deposit box that stores your online and offline information in one place.  In addition to helping users choose which accounts to add, Estate Assist uses an API from Intuit to automatically pull linked accounts and prompt users to change updated information in Estate Assist.  Once all of your assets have been uploaded, users can choose to share the accounts with designated trustees such as friends, family, or their lawyer.   

October 22, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Controversy for Digital Asset Legislation

Computer 2

The advent of technology and the digital age has introduced the world to cloud storage, e-mail accounts, and photo streams.  Today, almost everyone has assets that are stored as data and can be accessed online.  These “digital assets” may include text messages, e-mails, video images, source codes, software, online bank accounts, blogs, and much more.  The steady upshot of an individual’s online presence has given rise to a new legal issue—authority over administering digital assets and accounts of an account holder upon death or disability. 

As I have previously discussed, the Uniform Fiduciary Access to Digital Assets Act (UFADAA) is legislation drafted by the Uniform Law Commission to ensure account holders can retain control of their digital property and plan for its ultimate disposition after their death.  In August, Delaware became the first state to enact a law modeled after the UFADAA and will become effective January 1, 2015. 

While some view the UFADAA and the Delaware Act as a great solution to the estate administration issues raised by digital property, industry groups have criticized this legislation as encroaching on the privacy rights of the deceased.  In a recent blog post, Yahoo’s Senior Legal Director for Public Policy criticized the UFADAA for the “faulty presumption that the decedent would have wanted the trustee to have access to his or her communications” and for “setting the privacy default at zero.”  Other companies also publicly oppose the UFADAA and Delaware Act.  Facebook has stated it agrees with the concerns raised by Yahoo and Google, and co-signed an industry letter to Delaware’s governor, urging he veto the proposed law. 

See Fiduciary Access to Digital Assets and Accounts - Uniform Fiduciary Access to Digital Assets Act “UFADAA”, The National Law Review, Oct. 3, 2014. 

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

October 10, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, October 2, 2014

Estate Planning for the Digital Age


According to a 2012 Rocket Lawyer survey, most Americans forego estate planning altogether.  Yet who informs Facebook or other social media outlets and online services know you have passed away? 

As of now, only one state, Delaware, has a law allowing family members access to online profiles after someone dies.  The law still faces problems with companies like Yahoo and Twitter that have different policies for handling online information after someone’s passing.  In addition to the high price of hiring a lawyer to deal with these issues, it becomes clear why many people may not bother with planning.

Woody Levin contemplated these issues, and he came up with the idea to create a digital safe deposit box for all assets—online and off.  His company, Estate Assist, aims to help you store all of your online passwords, social media accounts, digital health records, bank and other paperwork.  The site works by informing the loved ones you choose that the account exists.  It will release information about all your accounts and digital paperwork as soon as this person can verify you have passed. 

See Sarah Buhr, Estate Assist Wants to Provide Estate Planning for the Social Media Age, MSN, Oct. 1, 2014.

October 2, 2014 in Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

Article on Testamentary Succession, New Technologies and Recodification


Mariusz Zalucki (Andrzej Frycz Modrzewski Krakow University College) recently published an article entitled, Testamentary Succession, New Technologies and Recodification: On the Research that Needs to Be Conducted, Societas Et Iurisprudentia 2014, Vol. II No. 2.  Provided below is the abstract from SSRN:

In view of the fact that one of the main tasks of modern inheritance law is to connect the available legal structures with the shape of property relations existing in the society and to favour solutions which enable to make the most of the testator’s estate after his or her death, the author concludes that a research needs to be conducted to examine what consequences in this field of law follow, inter alia, from the wide availability of audio and video digital recorders, and what are legal consequences of registering the last will of the testator using such equipment, e.g. if in such context, can we call a videotestament a newly developing form of estate disposition. In this scope projects should search for connections between the above-indicated technical equipment and the possibilities of fulfilling the last will of the testator, to analyze if they may be useful for applying the principle of testamentary freedom present in inheritance law and to explain if the application of such equipment by the testator will facilitate or hinder the execution of testator’s will mortis causa.

September 25, 2014 in Articles, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2014

Yahoo Criticizes Digital Asset Legislation


Many questions arise when it comes to addressing what should come of our personal digital communications after we die?  Should they be treated like physical letters for the purposes of a will?

Yahoo does not think so.  The company is now criticizing new legislation that gives executors charged with carrying out the instructions in a person’s will broad access to their online accounts.  Delaware recently passed legislation titled the “Fiduciary Access to Digital Assets and Digital Accounts Act.”  The measure removes some of the red tape that an estate attorney or other fiduciary would otherwise have to go through to gain broad access to the deceased’s online accounts. 

In a recent blog post, Yahoo stated that the expanded access violates the initial agreement users entered into when they started using services.  “When an individual signs up for a Yahoo account, they agree to our terms of service, which outlines that neither their account nor the contents of their private communications are transferrable at the time of death.” 

Yahoo’s terms of service say it may delete an account and all of the data if it is shown a copy of the person’s death certificate.  The company argues that the new legislation does not offer the correct means to providing a family or fiduciary the information they need when dealing with the loss of a relative.   

See Zach Miners, Yahoo Slams New ‘Digital Will’ Law, Says Users Have Privacy When They Die, PC World, Sept. 15, 2014.

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

September 23, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2014

Estate Planning with Smartphones


With the release of the new iPhone 6, it is becoming more apparent that smartphones are relied upon to make lives a lot easier.  From checking the weather to buying stock, there is almost nothing these phones cannot do.  In Australia, an individual came up with another innovative use for his smartphone when he used it to prepare his Last Will and Testament shortly before taking his life.

Karter Yu typed his Will on the notes application installed on his iPhone, titling the document his “Last Will and Testament.”  When challenged, the Supreme Court of Queensland, Australia declared the electronic document to be the Will of Mr. Yu.  Thus, the document was admitted to probate.  The court specifically noted that the document contained the decedent’s signature and was automatically time and date stamped by the phone. 

While this is a unique example as to how technology is molding estate planning, it is not recommended that individuals use the same “do-it-yourself” digital approach.  Because technology is advancing rapidly, electronic communications can be easily lost or outdated.  Furthermore, these communications may fail to meet the traditional requirements of testamentary formalities.

See Are iWills the Way of the Future? The National Law Review, Sept. 19, 2014.

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

September 21, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Technology, Wills | Permalink | Comments (0) | TrackBack (0)