Friday, July 7, 2017
David Horton recently published an Article entitled, Tomorrow's Inheritance: The Frontiers of Estate Planning Formalism, 58 B.C. L. Rev. 539 (2017). Provided below is an abstract of the Article:
The rules that govern the creation of an estate plan are in flux. Courts once demanded strict adherence to the Wills Act. Yet, this legacy of hyper-vigilance is waning, as the Uniform Probate Code, the Restatement (Third) of Property, and ten states have adopted the harmless error rule. Meanwhile, trusts, which need not comply with the Wills Act, have eclipsed wills as the dominant method of posthumous wealth transmission. This Article explores three budding topics that threaten to further complicate this area. First, there are anecdotal accounts of decedents trying to make electronic wills. In both strict compliance and harmless error jurisdictions, e-wills raise thorny issues about the meaning of “signed” and “writing” in the Wills Act, and when, if ever, courts should be able to overlook violations of the statute. Second, despite the received wisdom that trusts are less formal than wills, a rising number of settlors are failing to observe the arcane principles that govern the transfer of property into a trust. Third, most state legislatures have adopted or are currently considering statutes that give fiduciaries access to the contents of a decedent’s email, text messaging, and social media accounts. But the precise steps necessary to convey these cutting-edge forms of property after death is unclear. This Article tries to help courts and policymakers regulate these matters by offering a fresh perspective on the purpose of mechanical, bright-line principles in the realm of estate planning. As conventionally framed, this debate revolves around what the Article calls the “intent paradigm”: the idea that execution doctrines should be gauged primarily by whether they facilitate or frustrate the wishes of individual decedents. Conversely, this Article explores a different virtue of formalism: its ability to prevent decedents from imposing spillover costs. This Article demonstrates how some unyielding principles limit the burden on courts, survivors, trustees, the trustee’s creditors, purchasers of trust property, and other third parties. It then explains how recognizing this anti-externality function can pay dividends in wills law, trust law, and emerging niches such as the inheritability of digital assets.
Wednesday, June 28, 2017
On Monday, June 26, 2017, Florida Governor Rick Scott vetoed House Bill 277. The bill would have created the "Florida Electronic Wills Act." Below is the text of the letter from Gov. Scott to Secretary Detzner. Special thanks to Tami F. Conetta, Senior Vice President, Northern Trust, for bringing this development to my attention.
June 26, 2017
Secretary Ken Detzner Secretary of State
Florida Department of State
R.A. Gray Building
500 South Bronough Street
Tallahassee, Florida 32399
Dear Secretary Detzner:
By the authority vested in me as Governor of the State of Florida, under the provisions of Article III, Section 8, of the Constitution of Florida, I do hereby veto and transmit my objections to Committee Substitute for Committee Substitute for House Bill 277, enacted during the 119th Session of the Legislature of Florida, during the Regular Session of 2017 and entitled:
An act relating to wills and trusts...
The bill creates the "Florida Electronic Wills Act" which authorizes the creation of electronic wills, and provides that the execution of electronic wills may be witnessed and notarized through the use of remote technology. The bill also specifies that electronic wills of residents and nonresidents may be probated in Florida.
This bill has generated much debate among stakeholders who seek to find the right balance between providing safeguards to protect the will-making process from exploitation and fraud while also incorporating technological options that make wills financially accessible to a greater number of Florida's citizens. While the idea of electronic wills is innovative and may transform estate planning for Floridians, I believe this bill fails to strike the proper balance between competing concerns.
As Governor, I oversee the appointment of notaries public in the State of Florida and have a responsibility to ensure that notaries safeguard the most vulnerable Floridians against fraud and exploitation. While the concept of remote notarization is meant to provide increased access to legal services like estate planning, the remote notarization provisions in the bill do not adequately ensure authentication of the identity of the parties to the transaction and are not cohesive with the notary provisions set forth in Chapter 117, Florida Statutes.
Furthermore, providing an additional Florida venue for the probate of nonresident wills based only upon the qualified custodian's location in this state could burden Florida's court system with the probate of estates that may have no Florida nexus other than that the wills were created and stored here. Additionally, if the state where the decedent is domiciled does not recognize electronic wills as a valid declaration of intent, the individual could be left intestate.
Furthermore, I have concerns with the delayed implementation of the remote witnessing, remote notarization, and nonresident venue provisions of this bill. The Legislature delayed these provisions to April 1, 2018, in order to address "substantive changes and outstanding questions" during the next legislative session. Rather than sign an imperfect bill into law, I encourage the Legislature to continue to work on answering these outstanding questions and address the issues comprehensively during the next legislative session.
For the reasons stated above, I withhold my approval of Committee Substitute for Committee Substitute for House Bill 277 and do hereby veto the same.
Monday, June 19, 2017
US Navy Seaman First Class Robert Monroe “Bobby” Temple, age 19, of Wathena, Kansas, died December 7, 1941 in Pearl Harbor. Temple was a casualty of the World War II bombing of the USS Oklahoma. Temple joined the Navy when he was 18 and was stationed on the USS Oklahoma in Pearl Harbor when it was attacked by Japan. It was only recently that the Navy was able to identify Temple’s remains through modern DNA testing. After 75 years of waiting, Temple’s family will finally have the opportunity to conduct a memorial service that truly honors Temple’s life and the sacrifice he made for his country.
See Robert Monroe “Bobby” Temple (1922-1941), O’Fallon Weekly, June 13, 2017.
Monday, June 12, 2017
Crypto-assets like bitcoin and ether tend to fall to the bottom of the to-do list when it comes to estate and death planning. Even those with the technical savvy and acumen to understand the mechanics of passing on these assets fail to so do given the complex and daunting nature of the task. Third Key Solutions helps people build crypto-focused estate plans from both the tech side and the legal side. Looking to the technical side, Third Key Solutions can help with decisions involving which wallets to use and where and how to back up keys. Legally, they can make sure desired beneficiaries are sure to inherit their legacies.
Complex assets and various family situations many times require the aid of experts. As an aide, Third Key Solutions provides a generic template that can be used and specifically tailored for individuals with crypto-assets. Some words of caution, be careful using local currency and avoid stating exact numbers as these values will likely change by the time the form is needed. Also, note that filling out the template will probably not be enough to guarantee the legal passage of assets to designated beneficiaries. Grantors must adhere to the laws of their jurisdiction. Generally, it is prudent practice to seek legal advice when dealing with passage of property.
See Pamela Morgan, Letter To Loved Ones: A Template for Your Cryptocurrency Estate Planning, Brave New Coin, June 9, 2017.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Tuesday, June 6, 2017
Alberto B. Lopez recently published an Article entitled, Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets, 24 Geo. Mason L. Rev. 183 (2016). Provided below is an abstract of the Article:
Recently, however, the digital age has clashed with the law of wills in courtrooms and legislatures around the country.14 As the world has become increasingly digitized, executors have encountered difficulty when seeking access to a decedent’s digital assets that are stored in password-protected online accounts.15 For example, the author of the international best seller Pomegranate Soup, Marsha Mehran, died unexpectedly and without explanation in Ireland.16 Mehran’s father, Abbas Mehran, sought to determine if his daughter left any literary works on her Google Chromebook after her tragic death. Hoping to unlock the Chromebook, Mr. Mehran sent four emails to Google seeking access to his daughter’s account, but Google did not reply to any of the emails.17 Eventually, Mr. Mehran hired an attorney and filed a petition in court asking for access to documents on his daughter’s Google Drive account.18 Following “several weeks of negotiation,” Mr. Mehran obtained a CD from Google that included over 200 documents written by his daughter.19 The process began with the untimely passing of Mr. Mehran’s daughter and ended with the delivery of the CD to Mr. Mehran, but took more than a year20 —a statistic that accounts for neither the personal hardship endured nor the legal expense incurred during that period.
Thursday, June 1, 2017
A German appellate court recently denied a mother’s request to access her deceased daughter’s Facebook page. The mother had tried to access the page in 2012 after her daughter was hit by a train and killed. She wanted to determine if there was any indication of depression that might implicate suicide rather than accident. Facebook refused to provide the mother access based on their strict policy of not providing login information to someone else’s account. In the case of death, Facebook will freeze a user’s page and “Remembering” is placed over the decedent’s name. The page may only be removed through request of a verified immediate family member. The appellate court, overturning a lower court on Wednesday, said that the privacy rights of the user bore a superior interest to inheritance rights and denied the mother’s request for access.
See Ali Breland, German Court Rejects Mother's Request to Access Deceased Daughter's Facebook, The Hill, May 13, 2017.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) and Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Friday, May 26, 2017
After more than 75 years, Michael Galajdik, killed in the attack on Pearl Harbor while aboard the USS Oklahoma, will finally reach his ultimate resting place. Galajdik, a Navy Fireman 1st Class, will be buried at Lincoln National Cemetery in Elwood. Through the use of DNA and dental records, the Navy was able to successfully identify the previously unidentified corpse. George Sternisha, Galajkik’s nephew, will travel with the body from Hawaii to Joliet. Sternisha recalls his mother’s desire to bury her brother. Despite her passage in 1993, he is still happy to be able to fulfill her wish.
Ginger Dudek, a resident of Joliet, was concerned the funeral route would be bare. But, with the aid of social media, she was able to elicit a powerful response from the local community. Dudek asked residents to volunteer to line the streets as the funeral procession traversed its route. Calls soon came in with offers of aid. Dudek expressed her amazement and gratitude for those who were willing to honor the memory of Galajdik and his sacrifice.
See Alicia Fabber, Joliet Sailor Killed at Pearl Harbor Finally Will Be Laid to Rest, Chicago Tribune, April 21, 2017.
Monday, May 22, 2017
The 2017 New Mexico Legislature considered over 1000 bills and 43 Constitutional Amendments during its sixty-day session. Two bills of some interest that were approved by both Houses were the Uniform Fiduciary Access to Digital Assets Act (UFADA) and the Uniform Partition of Heirs Property Act (UPHPA).
UFADA is designed to extend the traditional power of a fiduciary to manage tangible property to include management of an individual’s digital assets. The act would allow fiduciaries to manage web domains, computer files, and virtual currency. It still restricts access to texts, email, and social accounts without prior consent from the client.
UPHPA is designed to protect family wealth from real estate speculators. A devise of property that creates tenants-in-common leaves each tenant with the power to force a partition of the property. Occasionally, speculators will purchase a small amount of an heir’s property in order to file a partition action and force a sale. The speculator will then purchase the property at a severe discount, depleting the family’s wealth in the process. UPHPA provides beneficiaries with certain rights in order to prevent this practice.
The Governor has a limited time period to act on most of the legislation approved during the recent session.
See John W. Anderson & Mark Anderson, NMBA Legislative Report, New Mexico Bankers Association, March 20, 2017.
Saturday, May 20, 2017
Jeremy de Beer & Tracey Doyle recently published an Article entitled, Dealing with Digital Property in Civil Litigation, Wills, Trusts, & Estates eJournal (May 2017). Provided below is an abstract of the Article:
This article aims to shed light on the conceptual, doctrinal and practical issues regarding digital property law by weaving together several facets of the subject. Legislative schemes for the digital environment have emerged to cover some issues but not others. The debate about further statutory reform to deal with digital property is ongoing. Litigated cases in Canada are becoming increasingly common, and those that arise tend to be complex and significant. With this article, we facilitate better understanding of digital property issues among the bench and the bar, and offer a principled approach to legal policymakers grappling with law reform in this context. The approach we put forward is one based on technological neutrality, in the substantive functional sense not the minimalist notion of media neutrality.
We begin by providing important historical perspective on the debate about digital property rights, tracing its evolution over the past 20 years. We then canvass six distinct areas of law where digital property issues are engaged: the legal definition of digital assets as property; the protection of digital property against damage; dealing with digital property in life and on death; digital property and privacy rights; jurisdiction over cyberspace; and the technological regulation of digital property.
After discussing the most significant legal developments during the past two decades, we conclude with strategic insights for judges, practitioners and others faced with digital property issues in the future. We show how substantive technological neutrality can serve as a guiding principle connecting each of the digital property doctrines we review.
Friday, May 19, 2017
The progression of dementia can be a slow and agonizing process for both those afflicted and for the people who love and care for them. Difficulty recalling precious memories is among the prominent and more terrible symptoms associated with this disorder. There is some new hope for individuals struggling with dementia, and it comes from an unexpected source. The Oculus Rift headset, a virtual reality system capable of immersing the user in a virtual world, has been integrated into a therapeutic package. The package includes a number of relaxing scenes ranging from beaches, to forests full of animals, to a view of Earth from space. The user maintains varying levels of control in each of the simulated scenes. The goal is to refresh the memories of dementia sufferers. Many who have used the headset recalled memories correlated to the scenes they were shown. The kit also includes a number of activity cards healthcare professionals may use in conjunction with the device that have specific questions used to pinpoint particular memories. While the system has shown some promise, it does not come cheap at a cost of just over $5,000.
See Shivali, Touching Moment a Virtual Reality Headset Helps Elderly People with Dementia Recall Precious Memories, Daily Mail, May 16, 2017.