Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Monday, October 20, 2014

Online Estate Planning Tools

LaptopMany online and computing tools to assist with estate planning exist now. One such product, is the online software portal TOLI Vault, which stores and monitors a range of planning documents, such as insurance policy, will, and trust documents. The system sends the user alerts when a document update is needed. A detailed review of the product can be seen here.

See Donald Kelley, TOLI Vault, Wealth Management, Oct. 14, 2014.

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

October 20, 2014 in Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Article on Access to Decedents' E-mail

Rebecca CummingsRebecca G. Cummings recently published an article entitled, The Case Against Access to Decedents' E-mail: Password Protection as an Exercise of the Right to Destroy, 15 Minn. J. L. Sci. & Tech. 897-947 (2014). Provided below is the abstract of the article:

There is currently substantial national momentum in state legislatures to grant personal representatives access to decedents’ e-mail as a part of a larger grant of access to all digital assets. In this Article, I make the case against such a default rule granting access to decedents’ e-mail. In the past nine years, Yahoo has not softened its position towards those who seek access to a Yahoo user’s e-mail post mortem. However, the other two largest e-mail service providers have more lenient policies on access to decedents’ e-mail. In this Article, I examine the service providers’ perspectives on access to decedents’ e-mail. Commentators are overwhelmingly supportive of access by personal representatives. They typically position Internet service providers, those providers’ terms of service, and secret passwords chosen by the deceased as stumbling blocks to efficient estate administration, the preservation of unique and irreplaceable sentimental and historical data, and the transfer of valuable property into the hands of deserving family members. Beginning with Connecticut in 2005, seven states have enacted statutes granting personal representatives some level of access to decedents’ digital assets, including e-mail. As of October 2013, about a dozen additional states have pending legislation that grants personal representatives access to decedents’ e-mail. Additionally, in January 2012, the Uniform Law Commission created a committee to “study the need for a feasibility of state legislation on fiduciary powers and authority to access digital information.” The committee is now operating with the mission to draft an act that “will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets,” and has developed a working draft that grants personal representatives access to password-protected e-mail accounts of the deceased (the Draft Uniform Act). I highlight the problems with, and new issues raised by, the access laws, proposed laws, and the Draft Uniform Act, and explore the problems with the arguments for access to decedents’ e-mail. I then assert that the commentary, statutes, and proposed legislation fail to adequately consider decedents’ intent, or probable intent, which is the bedrock of estate jurisprudence. I argue that storing e-mail in a password-protected account, coupled with nondisclosure of that password by the deceased, is an exercise of a decedent’s right to destroy his or her own property. Further, I maintain that state law and the Draft Uniform Act granting access to decedents’ e-mail inappropriately infringe upon this right. I conclude in Part V with a recommendation for an alternative default rule.

October 14, 2014 in Articles, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Controversy for Digital Asset Legislation

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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 9, 2014

IRS Urged To Reconsider Virtual Currency Guidance

Bitcoin 2

In response to Notice 2014-21, a committee of the Texas Society of CPAs pressed the IRS to reassess guidance on the treatment of convertible virtual currencies, such as Bitcoin.  In the Notice, the IRS announced it would treat such currencies as intangible personal property, rather than as domestic or foreign currencies.

The Federal Tax Policy Committee of the TSCPA argued that virtual currencies ought to be treated as foreign currencies, for which there is already a body of settled law under Section 988 and supporting regulations.  The letter further noted, “there is no organized market to objectively determine the value of virtual currencies” and disinterested third parties do not operate existing exchanges.  The letter acknowledged there would have to be some method created for distinguishing tax reporting purposes between holding a virtual currency as an investment and using it in the ordinary course of business.  

See Texas CPAs Urge IRS to Reconsider Virtual Currency Guidance, Charitable Planning, Oct. 6, 2014.

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

October 9, 2014 in Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Retirement Apps Are New and Underutilized Tool

AppRecent research done by Corporate Insight shows that the number of retirement plan companies taking advantage of mobile apps as part of their plans is relatively low. While 10 out of 17 are using mobile apps, only three have apps designed specifically for tablets. However, there has been a significant increase in retirement app availability compared to the results of the 2013 Corporate Insight study that reveled zero application use by retirement firms.

See Mark Miller, Retirement: Is There an App for That?, Wealth Management, Oct. 3, 2014.

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

October 6, 2014 in Estate Planning - Generally, Non-Probate Assets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Man Behind Bitcoin Ponzi Scheme Forced to pay Millions

BagAs one of the most well known cyber-currencies, Bitcoin has attracted many commentators, promoters, and scam artists. Earlier this week, the U.S. District Court for the Northern District of Texas entered an order for Tendon T. Shavers to pay disgorgement of $40 million and imposed a civil penalty of $150,000 for the Bitcoin Ponzi scheme that he ran on investors of Bitcoin Savings & Trust. Shavers targeted his victims through chat rooms and forums intended for those interested in Bitcoin, and operated under the user-name “pirateat40.”

See Jay Adkisson, BitcoinSavings & Trust Comes Up $40 Million Short on Trust Part, Forbes, Sept. 25, 2014.

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

September 26, 2014 in Current Affairs, Current Events, Estate Planning - Generally, New Cases, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Saturday, September 20, 2014

Article on Covering Your Digital Assets

LaptopMatt Borden recently published an article entitled, Covering Your Digital Assets: Why the Stored Communications Act Stands in the Way of Digital Inheritance, 75 Ohio St. L.J. 405-446 (2014).  Provided below is the introduction of the article:

The Internet [is] the first thing that humanity has built that humanity doesn’t understand, the largest experiment in anarchy that we have ever had.1

It is very difficult to regulate and craft legislation to manage a problem that no one fully understands. Nonetheless, the juggernaut that society has come to know as the World Wide Web has come to be managed by a myriad of complex and outdated state, national, and international laws.2 Similarly, social media has emerged over the past decade as the largest use of the internet and is also largely not understood.3 Since social media is a subset of the World Wide Web, it too is regulated by the same tangle of state, national, and international laws.4 Social media and the internet have created remarkable advances in society that have divided generations—one raised with a mouse in hand and one who has never, and may never, fully grasp the technology’s reach. And yet these two generations, separated by the rapid and largely unknown expansion of information and data, must equally confront the digital inheritance problem.

In the realm of inheritance, the intersection of death, cyberspace, and outdated statutes has highlighted one of the many misunderstood issues about the modern internet and social media: what happens to one’s social media and email accounts and digital content when she dies? Do heirs have the right to access old Facebook accounts and email accounts? Do they have a right to use them? These questions are complicated by the twist of federal legislation regulating internet privacy, most notably the Stored Communications Act (SCA).5 The SCA, a subsection of the Electronic Communications Privacy Act (ECPA),6 which originally regulated the interception of electronic  communications by federal law enforcement agencies, has encouraged social  media and email providers to adopt strict provisions regarding who may access a deceased user’s account after death.7 Thus, even though the SCA was originally drafted to inhibit illegal wiretaps,8 it now stands as a barrier to digital inheritance, a purpose which is outside its original scope and conflicts with traditional state approaches to inheritance.

This Note explores how the statutory scheme of the Stored Communications Act interferes with the transfer of digital assets and content after death. Part II lays out three cases that illustrate the SCA’s effect on digital inheritance. Part III examines the history of the SCA and what activity the Act regulates. Part IV explores how the SCA has subsequently influenced the privacy policies of social media and email providers, which prevents heirs, beneficiaries, and estate fiduciaries from accessing the accounts or content of deceased users. Part V explains why allowing digital inheritance is beneficial for society. Finally, Part VI advocates for an amendment to the SCA that would include an exception for parties in digital estates, namely heirs, beneficiaries, and estates fiduciaries, considers implications for such an amendment, and explores how other solutions do not adequately address the issue of SCA interference in digital inheritance.

September 20, 2014 in Articles, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Estate Planning for Digital Assets

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The Anderson family recently lost their nineteen-year-old son and is now seeking access to his text messages, e-mails, and Facebook account to find out more about the moments leading up to his tragic death.  The family is hoping to get 20,000 signatures to an online petition asking the Minnesota State Legislature to pass a law clearly authorizing fiduciary access to a deceased person’s digital data. 

This is an unfortunate scenario that illustrates the importance of planning ahead for your digital property.  It is essential to arrange for full access to your data to keep estate administration costs down, to provide for a smooth estate administration, and to ensure that none of your valuable or significant digital property is overlooked.  Contact your estate-planning attorney to include plans for your digital property in your estate plan.  Make sure this plan specifies your wishes about your property and appoints a fiduciary to act on your behalf with respect to your digital property, during incapacity and after death.  Furthermore, ensure that your estate planning documents authorize the companies that hold your electronic data to release that data to your fiduciaries during your incapacity and after your death, which is important for the Stored Communications Act’s privacy protections.

See Jim Lamm, Video Clip: Family Wants Access to Son’s Digital Data After Death, Digital Passing, Sept. 10, 2014.

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

September 11, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, September 5, 2014

Wills of WWI Soldiers Garner Huge Interest

WWI SoldierAs I have previously discussed, last year the wills of thousands of fallen British soldiers from WWI were published online by Her Majesty's Court and Tribunal Service (HMCTS). The historic documents that were found in the pockets of the soldiers have garnered huge interest from scholars, historians, and the general public. The site has received over a million searches for these wills and over 10,000  individuals have purchased their own copy of one of the wills.

See Ministry of Justice, Over One Million Searches for War Heroes’ Wills, GOV.UK, Aug. 29, 2014.

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

September 5, 2014 in Estate Planning - Generally, Web/Tech, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

Delaware Sets Stage for Answering Digital Assets Questions

LaptopAs I have previously discussed, Delaware recently passed legislation that allows families in Delaware the ability to access digital assets and accounts of deceased family members the same way they would be given access to physical documents.  This new law makes Delaware the first state to give an answer to what happens to digital assets after death. For those in other states, the burden is on the individual to plan for what is to come of their online accounts. For assets to be available to family members after death, account passwords must be shared, though this is against the policies of most online account providers. If nothing is done, then many accounts just disappear, taking with them family photos, access to bank accounts, e-book collections, music libraries, and important medical information.

See Caitlin Dewey, What Happens to Your Online Life After You Die? Delaware Has Some Suggestions, The Washington Post, Aug. 20, 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.

August 24, 2014 in Current Affairs, Estate Planning - Generally, New Legislation, Web/Tech | Permalink | Comments (0) | TrackBack (0)