Wills, Trusts & Estates Prof Blog

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

Thursday, November 10, 2016

Article on DIY Estate Planning

DiyGerard G. Brew recently published an Article entitled, Commentary of ABA RPTE Taskforce on Do-It-Yourself Estate Planning, November/December Probate & Property (2016). Provided below is an abstract of the Article:

In recent years, do-it-yourself (DIY) providers have emerged in many fields ranging from income tax preparation to estate planning. These services purport to provide, at low cost, the ability to generate computer-drafted documents that may bear some of the hallmarks of professionally prepared documents. Although these services provide tools to enable the DIY project, as with the home improvement world, they should be used with caution.

Those who seek to replace proper professional advice with a DIY online document in complex fields like estate planning should understand the effects of their actions. One should bear in mind that even those with fairly sophisticated skills think twice before venturing beyond their area of expertise. Consider eminent Judge Rifkind’s observation on the subject of tax law that “[a]fter 50 years of practice, I would no more have the audacity to formulate my own tax return than I would engage in open heart surgery.” Simon H. Rifkind, Are We Asking Too Much of Our Courts?, 15 Judges’ J. 43, 50 (1976).

These concerns prompted the ABA RPTE Section to designate a task force to evaluate the use of DIY methods in estate planning. The task force has considered a number of issues, including the reasons why DIY options may be inadequate or incomplete for many individuals. The task force reviewed much of the commentary on DIY estate planning and will publish a more detailed report in the future. This article contains the author’s report summarizing some of the many concerns identified by the task force. The task force comprised this author, Jo Ann Engelhardt, Rochelle Haller, Joseph Hodges, Susan Porter, and Bruce Tannahill. The opinions expressed herein are those of this author, who chaired the task force.

November 10, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Friday, November 4, 2016

Technology Start-Ups for End-of-Life Needs

Online funeral servicesMost people would rather not deal with death and dying until it is imminently near, but as our population gets older, many technology companies are setting out to specialize in funeral and cemetery needs. The millennial generation, those who have grown up online, is creating new tech start-ups to capture a little sector of the $18 billion death industry. Additionally, clients are seeing the hassle and expense of having to consult a lawyer, so they are turning to start-ups that provide state-specific estate planning documents online. There are other start-up technology companies that allow users to compare prices and services for funeral homes, taking 12%–15% of the funeral bill as a fee. As the technology industry continues to expand, we will begin seeing more companies helping out those in need of end-of-life services.

See Eilene Zimmerman, Start-Ups for the End of Life, N.Y. Times, November 2, 2016.

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

November 4, 2016 in Current Events, Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0)

Wednesday, November 2, 2016

Article on California's "Harmless Error" Provision for Electronic Wills

California harmless errorGökalp Y. Gürer recently published an Article entitled, No Paper? No Problem: Ushering in Electronic Wills Through California’s “Harmless Error” Provision, 49 U.C. Davis L. Rev. 1955 (2016). Provided below is a summary of the Article:

Currently, Nevada is the only state15 to have passed an electronic wills statute. In California and the forty-eight other states (with laws varying somewhat state-to-state), as a general rule all wills must be on paper, either typed (and printed) or handwritten. But as mentioned earlier, California's probate code includes a harmless error provision that focuses on testamentary intent and not strict adherence to formalities. Thus, if one can represent their intentions via an electronic will just as clearly as they can with a paper will, then perhaps harmless error could be utilized as an entrance for electronic wills without waiting for the California Legislature to pass a separate statute like Nevada has done. This exciting possibility exists because even though California's harmless error provision is directed to paper wills, an alternative reading of the statute in conjunction with case law opens the door to permit electronic wills. This Note embraces this opportunity.

Part I explores the origin of the modern will's formal requirements by tracing its evolution through the Statute of Wills of 1540, Statute of Frauds of 1677, and Wills Act of 1837. Fleshing out this timeline illustrates just how slowly wills law develops, and thus how much effort is needed to advance it. Part II provides a detailed description of the current state of wills law in California, highlighting and explaining the writing, signature, and attestation requirements. Part III explains and analyzes section 2-503 of the Uniform Probate Code (the “Uniform Harmless Error Provision”) and section 6110(c)(2) of the California Probate Code (“California's Harmless Error Provision”), highlighting how harmless error functions. Part IV provides the solution to California's lack of an electronic wills statute. This section presents a three-fold argument: (1) electronic wills satisfy California's writing and signature requirements; (2) California's harmless error provision can be interpreted to include electronic wills; and (3) public policy supports harmless error's inclusion of electronic wills. This Note concludes by suggesting that the time is ripe for California to take an innovative leap forward in wills law to an era where electronic wills stand side-by-side with paper wills.

November 2, 2016 in Articles, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Friday, October 28, 2016

Moving from Investment Management to Wealth Management

Wealth mangementAs investment management becomes commoditized, advisors need to expand their services to avoid fee compression. Clients will increasingly see value outside of investments in things like tax planning, estate planning, and life coaching. As society moves away from investment management, there is a movement toward wealth management. To implement this movement, technology will be instrumental in delivering these commoditized services. 

See Dan Jamieson, Advisors Warned to Expand Beyond Investments, Financial Advisor, October 26, 2016. 

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

 

October 28, 2016 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Article on the Estate Planning Challenges of Digital Assets

Digital assets actElizabeth Ruth Carter recently published an Article entitled, Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, LSU 46th Annual Estate Planning Seminar (2016). Provided below is an abstract of the Article:

These materials were prepared in conjunction with the LSU 46th Estate Planning Seminar. They explore the various types of digital assets -- including social media (Facebook, Twitter, Linked In, etc.), audiobooks, music and video files, and bitcoin -- and the estate planning challenges these assets present. These material also consider the federal estate and gift tax issues posed by digital assets, including questions related to small business valuation.

 

October 28, 2016 in Articles, Estate Planning - Generally, Estate Tax, Gift Tax, Technology | Permalink | Comments (0)

Wednesday, October 19, 2016

Electronically Stored Information Inspected for Evidence in Will Contest

EsiRecently, during discovery in a will contest, a New York Surrogate court forced the drafting attorney of a will to fork over his computer. In In re Nunz, the court found that there was a “proper basis” for the attorney to turn over of his computer, helping to resolve uncertain issues regarding the execution of the will. The decedent had drafted a will leaving out five of his six children from a previous marriage; accordingly, they contested the will when documentation for the will’s preparation went allegedly missing from the drafting attorney’s computer. At a hearing, the court held that the electronically stored information was “clearly discoverable” for the children to obtain the material and necessary information. This case represents another example of how electronically stored information finds its way into a proceeding.  

See Brian Spiro, Drafting Attorney’s Computer Inspected for Evidence in Will Contest, Florida Probate Lawyers, October 18, 2016. 

 

October 19, 2016 in Current Events, Estate Planning - Generally, New Cases, Technology, Wills | Permalink | Comments (0)

Monday, October 17, 2016

Article on Estate Planning Challenges for Digital Assets

Digital assets actElizabeth Ruth Carter recently published an Article entitled, Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, LSU 46th Annual Estate Planning Seminar (2016). Provided below is an abstract of the Article:

These materials were prepared in conjunction with the LSU 46th Estate Planning Seminar. They explore the various types of digital assets--including social media (Facebook, Twitter, Linked In, etc.), audiobooks, music and video files, and bitcoin--and the estate planning challenges these assets present. These material also consider the federal estate and gift tax issues posed by digital assets, including questions related to small business valuation.

 

October 17, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Who Will Inherit Your Digital Collections?

Itunes libraryOur digital collections of music and books can expire at our death, causing family members to lose a huge chunk of change. Normally, customers for digital content own a license to use the digital files without actually owning them. For example, Apple grants users nontransferable rights to use their content, according to your specific account. One lawyer is trying to combat this issue by creating software that acts as a legal trust for client’s online accounts, managing digital accounts and passwords. With such a significant portion of our assets being digital, this type of technology will become essential over the coming years. 

See Quentin Fottrell, Who Inherits Your iTunes Library?, Market Watch, August 23, 2016. 

 

October 17, 2016 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Tuesday, August 30, 2016

Article on Privacy Interests at Death

Digital assets actNatalie M. Banta recently published an Article entitled, Death and Privacy in the Digital Age, 94 N.C. L. Rev. 927 (2016). Provided below is a summary of the Article:

Americans store an overwhelming amount of sensitive, personal information online. In email accounts, social networking posts, blogs, shared pictures, and private documents, individuals store (perhaps unwittingly) the secrets and details of their lives in an unprecedented manner. During an individual's life, these accounts are seemingly under the direct control of an account holder. Privacy is occasionally threatened, but people continue to use online services and pour personal information into their online accounts.

When developers created these online services and platforms, it is unlikely that they gave much thought to what would happen to accounts when an account holder died. Yet, the treatment of these accounts after an account holder's death is an increasingly pressing issue in today's society as more and more Americans die with active, password-protected accounts in their name. In determining how these assets will be handled at an individual's death, powerful principles collide--including privacy, contract, property, and freedom of information.

This Article discusses how privacy interests are traditionally terminated at death and explores how they should be revived and reshaped in a digital future. It argues that to align posthumous privacy interests with the needs of a digital future, the law must ensure that succession principles apply to privacy as well as property rights, and that decedents' individual intent for the fate of digital assets is honored. The Article acknowledges that private contracts may be a sufficient tool to protect privacy after death in some instances, but argues that the lodestar in any discussion of posthumous privacy should be testamentary intent. In the absence of testamentary intent, state legislatures should enact default rules of digital asset succession that accord with the family-centered paradigm of inheritance.

August 30, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Monday, August 29, 2016

A New $100 Billion Business: Endowment Management

EndowmentThere is huge competition for money managers fighting to oversee endowments. The business has grown into an almost $100 billion business, attracting stiff competition amongst banks, consultants, and boutiques. This area of money management represents a rare area of potential growth for those currently competing with index- and computer-driven strategies. University endowments also offer access to wealthy benefactors that can become future clients.    

See Michael McDonald, Wall Street Redoubles Fight to Manage $100 Billion at Endowments, Bloomberg, August 29, 2016.

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

August 29, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0)