Wills, Trusts & Estates Prof Blog

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

Wednesday, December 21, 2016

Article on Digital Asset Disposition

Digital-assetsAlberto B. Lopez recently published an Article entitled, Death and the Digital Age: The Disposition of Digital Assets, 3 Savannah L. Rev. 77–89 (2016). Provided below is a summary of the Article:

If being a personal representative was not sufficiently difficult, the advent of the digital age has only increased the burdens placed on those willing to undertake the role on behalf of a decedent. The seemingly ever-expanding usage of digital devices means that individuals increasingly handle many routine aspects of life online. Banking, shopping, and communication are done, at least in part, online by a substantial number of people. For personal representatives, a decedent’s online footprint creates access difficulties because many online accounts are password protected. A decedent may have received and paid utility bills, for example, via an online account without any paper record of the transaction; therefore, a personal representative may have trouble closing an account with a utility provider without the account’s password. Given the number of online accounts used by most people, living individuals may have trouble remembering their own usernames and passwords, let alone finding such information for an unknown number of online accounts held by a decedent. 

Even if passwords are discovered by a personal representative, accessing the account may be construed as a violation of the terms of the service agreement between a decedent and a service provider. For example, Karen Williams sought access to her son’s Facebook account following his death, but did not have the password to the account. Eventually, Williams gained access to the account after receiving “a tip” from one of her son’s friends. Accessing her son’s account, however, violated Facebook’s terms of service regarding unauthorized access; therefore, Facebook changed the password to the account thereby barring William’s access. In response, Williams brought suit to regain “full and unobstructed” access to her son’s account. Although the court ruled in her favor, the relief granted Williams only ten months of access to the account. At the expiration of the ten-month access period, Facebook terminated the account. 


December 21, 2016 in Articles, Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Tuesday, December 20, 2016

Article on Preserving Digital Assets Under the UFADAA's Removal of Privacy Protections

Digital assets actElizabeth D. Barwick recently published an Article entitled, All Blogs Go to Heaven: Preserving Valuable Digital Assets Without the Uniform Fiduciary Access to Digital Assets Act’s Removal of Third Party Privacy Protections, 50 Ga. L. Rev. 593 (2016). Provided below is a summary of the Article:

Part II of this Note will give a detailed overview of the existing and proposed laws governing access to a decedent's digital assets, as well as the co-existing and often conflicting terms of service agreements and federal statutes, which the UFADAA purport to override. Part III will consider an alternative statutory scheme under which judges would have ex-post discretionary power to balance the privacy interests involved in each case with the need for access. Part IV will subject the hypothetical scenarios laid out above to the various statutory schemes in order to see how a balancing of interests might reveal whether the policies behind the current laws, as well as the UFADAA, are really being furthered by broad access.


December 20, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Thursday, December 15, 2016

The Future of Embryo Lawsuits

EmbryosIVF treatment is becoming more and more popular with medical advancements. Consequently, we should start to see an increase in the amount of lawsuits over embryos. Family law is governed by the states, so there is little unified guidance on how these types of cases should be handled. There is, however, a rough consensus on the issue—if there is a contract, you must follow it. If no agreement, the main exception is that the embryos can be used if it is one party’s last chance to become a genetic parent. With this decision, it is important to remember that the embryos were created with the full knowledge and consent of both parties. Another issue that will come to volition is how to classify these embryos. Should family law apply, or are the embryos considered property? With such uncertainty surrounding this issue, it is important that people carefully consider the outcomes when choosing IVF.    

See Angela Chen, Who Owns Frozen Embryos?, Verge, December 13, 2016. 

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


December 15, 2016 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Monday, December 12, 2016

How Life Expectancy Factors into Your Retirement

Retirement savings lifeWhen it comes to retirement, people usually underestimate how long they will live and overestimate future returns. Life expectancy, which increases every year, depends on a person’s age. This can result in too little savings for a person’s life, especially in an age of medical advancements. Ignoring the probability that you will live longer, only creates more stress and poverty at a time when it matters most. Accordingly, it is important to use more conservative life expectancies when planning for your retirement. 

See Henry K. Hebeler, Good News and Bad News: You May End Up Living a Lot Longer than You Expect, Marketwatch, December 12, 2016. 


December 12, 2016 in Estate Planning - Generally, Technology | Permalink | Comments (0)

Friday, December 9, 2016

A New App That Ages Your Face

AgingboothDo you want to see how you will look when you are old? AgingBooth is a new app that uses your pictures and instantly ages your face. This face aging machine can be downloaded to your iPhone or iPod Touch and used on your family, friends, or colleagues. Are you ready to face your future?

See AgingBooth, Pivi & Co.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this app to my attention.  

December 9, 2016 in Current Events, Elder Law, Humor, Technology | Permalink | Comments (0)

Tuesday, December 6, 2016

Article on Intellectual Property Dimensions of Real Property

Intellectual propertyMichael N. Widener recently published an Article entitled, Brand: Modern Realty Transfers' Iconic Dimension, 51 Real Property, Trust & Estate L.J. 23 (2016). Provided below is an abstract of the Article:

Any real estate project branded "Trump [Product Type]" is better positioned in marketing circles than equivalent projects lacking that association.* The preceding sentence reminds you that real estate is a consumer product in one seminal respect. Brand, even in real property development, reflects upon the lifestyles of persons shopping, eating, working and sojourning in a unique place. Development projects today need branding to differentiate themselves from other places and to message to potential shoppers, consumers, tenants or buyers what it's like to engage in a dynamic environment or to enjoy the creative energy of fellow occupants or the surrounding neighborhood. Messaging has much to say about the image and reputation of a commercial property – and the expected momentum of the project's lease-out or unit sales. It creates an emotional, visceral connection with shoppers, travelers, workers or whomever is the target of the "experience" narrative. 

Such vital components of those images and messages that cumulatively constitute the "brand" of a real estate development must follow ownership or leasing of the project. This paper identifies all the critical branding elements, discusses how in this digital age they are registered (secured) in their creators, and how (and why) future use of those elements must be secured by the buyer or the ground tenant – whomever is the transferee of the physical project. As new means of expression such as Memes and GIFs, followed by emoticons, populate the branding realm, the practitioner must stay on her toes to advise transferees of their burdens of due diligence and securing rights in the brand. This paper suggests the proper path to transferees' ongoing rights to control the brand elements beyond closing on the concurrent real property transaction. 

*If you doubt this proposition, consult Donald Trump for his view. This abstract itself tests the power of the surname Trump to secure "views" and downloads of the accompanying paper.

December 6, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Sunday, December 4, 2016

Thomas Edison's Light Bulbs Hit the Auction Block

EdisonIf you want to get your hands on some electric relics, Heritage Auction is auctioning off five 19th century light bulbs and a socket. Edison Electric used the memorabilia in lawsuits against companies that Thomas Edison claimed were copying his bright ideas. Heritage estimates it will sell the items for $10,000, but this number could easily be blown out of the socket. The auction house is also selling Edison’s keys to his Menlo Park lab where he invented the first commercial light bulb for $6,000.

See Thomas Edison: Here’s a Bright Idea . . . $10k for 5 Light Bulbs!, TMZ, December 3, 2016.

December 4, 2016 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (1)

Saturday, November 26, 2016

Stephen Hawking Predicts Human Race Survival

PlanetsStephen Hawking predicts that humanity will not survive another 1,000 years on planet Earth due to things like climate change, nuclear weapons, and robots. Hawking claims that the human race’s best chance for survival is establishing new colonies on other planets. This prediction comes at a time when space exploration has been ramping up. NASA is searching for “goldilocks” that might help sustain human life while Elon Musk plans to colonize Mars within the next century.

 See Doug Criss, Stephen Hawking Says We’ve Got About 1,000 Years to Find a New Place to Live, CNN, November 18, 2016.

November 26, 2016 in Current Events, Science, Technology | Permalink | Comments (1)

Tuesday, November 22, 2016

IRS Is Hunting Down Bitcoin Tax Evaders

BitcoinThe IRS is hunting down those who are using Bitcoin to evade taxes. In fact, the IRS sent a request to the largest Bitcoin exchange asking for all customer records, showing who bought virtual currency between 2013 and 2015. This request comes shortly after the Treasury Department’s inspector general chastising the tax agency for not taking more aggressive steps to curb unlawful activities by those using virtual currencies. Further, this request is the most sweeping single effort to track down those using virtual currency. Bitcoin users are most likely not aware that they should be tracking their losses and gains as taxable events every time they make a purchase with their Bitcoins. The characteristics of virtual currencies are enabling users to evade taxes by using traditional abusive tax arrangements online.

See Nathaniel Popper, Bitcoin Users Who Evade Taxes Are Sought by the I.R.S., N.Y. Times, November 18, 2016.

Special thanks to Jerry Hesch (Attorney, Aventura, Florida) for bringing this article to my attention.  

November 22, 2016 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Monday, November 21, 2016

Article on Nationwide Adoption of the RUFADAA

RufadaaElizabeth Sy recently published an Article entitled, The Revised Uniform Fiduciary Access to Digital Assets Act: Has the Law Caught Up with Technology?, 32 Touro L. Rev. 647 (2016). Provided below is a summary of the Article:

In 2014, there were only a few, albeit inadequate, state laws that governed digital assets. In an attempt to keep pace with changing technology, on March 3, 2014, the Uniform Law Commission (ULC) took a shot at creating a bridge between the will and the web by proposing the Uniform Fiduciary Access to Digital Assets Act (the UFADAA). Its purpose was to “vest fiduciaries with the authority to access, manage, copy, or delete digital assets and accounts.” However, in response to privacy concerns, NetChoice played defense by proposing the Privacy Expectation After-life Choice Act (the PEACA). The PEACA “aims to let fiduciaries have access to digital service providers to view only select contents of accounts,” such as the “To” and “From” lines of an email, so they know what organization to contact to close an account. The PEACA is backed by the Internet Coalition, an organization comprised of some of the largest technology companies including Amazon, Google and Facebook. On September 28, 2015, shortly after the opposition to its proposal, the ULC substantially revised the UFADAA, by creating what is now known as the Revised UFADAA (the RUFADAA), which not only sets forth comprehensive default laws, but also recognizes and protects the deceased user's privacy.

Part II of this comment discusses the ever-evolving term “digital asset,” the emergence of the digital world, and their related legal implications. Part III provides two sample scenarios that trigger post mortem privacy concerns and introduces related societal opinions. Part IV addresses the effects of Internet Service Providers (ISPs), federal laws, state laws and the judiciary on the fate of digital assets. Part V briefly explains the ULC's influence in the trust and estates area, analyzes one of its latest proposed laws - the RUFADAA, and proposes several changes. Ultimately, this comment advocates for the nationwide adoption of the RUFADAA in a revised form because it is the most comprehensive law that tackles both digital assets and privacy concerns.

November 21, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)