Wills, Trusts & Estates Prof Blog

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

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Monday, January 26, 2015

Article on Planning for a Digital Legacy

WirelessSasha A. Klein (Bessemer Trust) and Mark R. Parthemer (Bessemer Trust) recently published an article entitled, Planning for a Digital Legacy, 29 Probate & Property No. 1 (January/February 2015).  Provided below is the introduction to the article:

Every 60 seconds over 168 million e-mails are sent, 695,000 Facebook status updates are posted, 100 people join LinkedIn, 320 new Twitter accounts are created, 600 digital videos are added to YouTube, and 6,600 photos are added to Flickr.

Digital assets are part of our everyday lives and are here to stay. Recent studies have found that among Americans, 85% of adults and 95% of teenagers use the Internet. Of those Americans, 80% of them (more than 120 million) engage in social media such as Facebook, LinkedIn, or Twitter, which is more than 25% of all time spent on-line. More than 50% of American seniors are on-line. And a surprising 92% of children under the age of two have a digital presence.

The world of digital assets is broad, but planning for these assets is often overlooked. Further, digital assets have growning quickly, and perhaps too quickly because, unfortunately, the existing state and federal laws on digital assets are underdeveloped. Moreover, on-line service providers each have their own terms of service (TOS) agreements, and these agreements are not uniform. With the rapid growth of digital assets, lack of current legal guidance, and inconsistent service agreements, it is important for your clients to be aware of potential issues that can arise over their digital assets and plan accordingly. As a trusted and well-informed advisor, you should be well positioned to explore these issues with your clients and help them create an effective solution.

January 26, 2015 in Articles, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Saturday, January 24, 2015

Family Seeks to Access Son's Digital Data

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When Bill and Kristi Anderson lost their son Jake in December 2013 from hypothermia, they were surprised to discover that without a search warrant, the law does not permit them access to Jake’s final text messages, phone calls or pictures.  “Was he abducted? Did he get lost? We don’t know,” Kristi Anderson testified before lawmakers Tuesday morning, “but we think his cell phone could possibly contain some of those answers.” 

Jake’s parents want answers surrounding his death.  Fortunately, Representative Debra Hilstrom wants to help them.  “Imagine if your bank chose to treat your assets in the same way and said, ‘oh, no, you died, so no one can get access to your assets.  We’d all be outraged.”  Hilstrom authored a bill that would allow account holders or a personal representative of the deceased get access to digital assets, as long as the deceased does not prohibit access in their will. The Minnesota Legislature will hold additional hearings to vote on the bill.

See Tom Hauser, Family Fights to Access Late Son’s Digital Data, ABC Eyewitness News, Jan. 21, 2015.

January 24, 2015 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2015

Article on Probate Law Meets the Digital Age

Naomi_CahnNaomi Cahn (Harold H. Greene Professor of Law, George Washington University Law School) recently published an article entitled, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014). Provided below is the abstract from the article:

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.

January 18, 2015 in Articles, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

E-Mail Etiquette Rules To Live By

EmailTechnology and e-mail plays a vital role in any business, especially estate planning.  It helps make communication between clients and other professionals more efficient.  However, as with most things, there are specific rules estate planning professionals should follow when it comes to using technology and e-mail.  Below are important e-mail etiquette rules to live and work by:

  • Be conscientious about private information.  Estate planners handle a plethora of personal information, thus, it is important when you send information by e-mail that you are aware about any private information you are sharing.
  • Watch out for the “Reply All” button.  When you “reply all” a lot of eyes may be reading something whom you had not intended.  Use this button sparingly.
  • Use BCC and CC features when appropriate.  Not everyone needs to be CC’ed or BCC’ed on the e-mails you send.  People are inundated with e-mails every day, so unless it is absolutely necessary, use these options only when needed.
  • ALWAYS use a signature.  Many professionals neglect this simple and easy step.  Not only is it helpful in identifying you, it is also nice for others to have your contact information handy. 
  • Reply to e-mails in a timely fashion.  A good practice would be to return all e-mails received during the same business day.  Even if you do not have a complete answer, it is nice to let people know you have received their e-mail.

See Kristina Schneider, Top 10 E-mail Etiquette Rules for Estate Planning Professionals (and Their Assistants and Staff), Ultimate Estate Planner, Jan. 1, 2015. 

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

January 16, 2015 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2015

Online Trusts and Estates Practice Tools

LaptopLast year saw many developments in technology that effects trusts and estates areas, and a plethora of information about these developments were made available online. Many online practice tools and commentaries on trust and estate planning were made available last year, such as updated charts published by Steve Oshins on state rankings for dynasty trusts, trust decanting, and domestic asset protection trusts. Additionally, many resources on tips for more effective uses of email, Microsoft Office programs, and use of technology in trust and estate practice were made available. There were also many practitioner helpful mobile phone and Mac apps released last year, such as apps that allow computer files to be synched and stored with mobile devices. Links to informative resources on the online practice tools discussed and many more can be found here.

See Donald Kelley, Recent Developments in Tech Resources for the Trusts and Estates Practice, Part 1, Wealth Management, Jan. 13, 2015.

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

January 14, 2015 in Estate Planning - Generally, Trusts, Web/Tech, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

Article on Virtual Worlds

LaptopEdina Harbinja (University of Strathclyde Law School, University of Hertfordshire) recently published an article entitled, Virtual Worlds - A Legal Post-Mortem Account, SCRIPT-ed, Vol. 11, No. 3, 2014. Provided below is the abstract from SSRN:

This paper addresses the lack of legal literature in the area of death and virtual worlds. It sheds light on the legal status of different in-game assets, assessing whether these could fit within the notions of property or other relevant legal concepts such as intellectual property, usufruct, or easements. Having determined this, the paper goes on to explore the possibilities regarding the transmission of these assets on death.

The author does not share views of a great portion of the legal literature arguing for recognition of "virtual property" as a concept. Rather, this paper proposes an alternative solution in order to reconcile different interests arising in VWs; primarily, those of developers and players. Recognising a phenomenon of consitutionalisation of VWs, this article suggests a solution in the form of servitudes (usufruct). Virtual usufruct is herein conceived as player's entitlement to use the VW account and profit from it, if applicable. It is suggested that the entitlement to use the account expires on death, but that it allows a player's personal representative/executor to gain access to the account and extract any possible monetary value. This solution would enable players to take more control over their virtual assets and heirs to potentially benefit from valuable VW accounts.

January 8, 2015 in Articles, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Technology Could Replace Lawyers By 2030

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According to a report by Jomati Consultants LLP, artificial intelligence and robotics will change the entire legal landscape in by 2030.  The founder of the British-based legal consulting firm, Tony Williams, says that law firms will see almost all of their process work handled by robots.  This will revolutionize the industry, “completely upending the traditional associate leverage model.”

Although the report heavily favors technology, not everyone is on board with the idea the legal structure can be automated.  Ken Chasse, a lawyer at Barrister & Solicitor for 48 years, wrote an independent report that says legal advice could not be mechanized, by nature. 

See Clay Gillespie, Legal Consulting Firm Believes Artificial Intelligence Could Replace Lawyers By 2030, Hacked, Jan. 2, 2015. 

Special thanks to Cale Cormier for bringing this article to my attention.

January 2, 2015 in Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

Donating Bitcoin To Charity

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In recent years, Bitcoin has received much attention in the realm of virtual currencies.  This is partly because of its incredible growth in value, going from less than $1 in 2011 to nearly $1,000 at the end of 2013. 

Along with the growing popularity of Bitcoin, the number of charitable organizations that accept virtual currencies has been growing.  Simultaneously, virtual currencies have been under scrutiny by the government.  In March, the Internal Revenue Service issued an opinion on the taxation of virtual currencies, ruling they should be treated as property rather than currency.  That creates administrative problems for Bitcoin users, while also allowing donors to obtain generous charitable income tax deductions for donating Bitcoin that is worth more than they paid for it. 

If you plan on making a charitable donation with your virtual currencies, it is important to understand the process.  You first must determine whether the charity you want to donate accepts virtual currency; then donate the currency; finally, determine the value of the charitable deduction. 

When determining your tax deduction, the IRS allows different deductions depending on the period of time that you held the property.  If you held Bitcoins for more than a year, you can deduct the full fair market value of the donation, up to 30 percent of your adjusted gross income.  If you held the Bitcoins for less than a year, your deduction is only equal to the cost of Bitcoins to you, or their present value—whichever is less. 

See Janet Novack, How To Donate Bitcoin To Charity And Get A Big Tax Deduction, Forbes, Dec. 22, 2014.

December 23, 2014 in Estate Planning - Generally, Gift Tax, Income Tax, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

Accessing Online Accounts of Deceased Relatives

LaptopEstate Planning for digital assets and accounts has been a recent focus with states considering, and Delaware passing, laws that allow for relatives to access online accounts after the death of the account holder. One relatively simple option is for an account holder to either give passwords and account information to a trusted person or keep a list of the information in a secure place to be retrieved when needed. However, this method takes both trust and planning. Some common account providers have their own procedures for family members to retrieve digital data of a deceased loved one.

For Facebook accounts, the account can be either deleted or memorialized with proof of death and relation to the deceased. Other social media accounts, such as Twitter, Instagram, and LinkedIn accounts can be closed through direct contact, proof of identification of the requester, and proof of death of the account holder. To access a relative's Google account, one may mail or fax their identification and the deceased's death certificate to request access, but approval is not guaranteed. However, Yahoo mail accounts only offer the ability to close the account, but will not release any emails.

See Mariella Moon, What You Need to Know About Your Digital Life After Death, Engadget, Dec. 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.

December 16, 2014 in Estate Administration, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 14, 2014

Clarifying the Digital Asset Issue

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If you search for the late actor and comedian Robin Williams on Facebook you will likely come across an invitation to “connect” with him.  However, this could be difficult as the beloved Academy Award winner passed away four months ago.  His page is now set up to receive tributes from his large fan base.

While Williams’ page is dedicated to him for well-wishes, it would be almost impossible for your family or estate executors to access your social media, email and online entertainment or financial accounts.  Under current law, it is illegal to access another’s digital accounts without the person’s prior approval, and many online companies keep the deceased’s logins and passwords confidential, even from family members. 

State Senator Dorothy Hukill seeks to clarify this digital-age issue.  The Port Orange Republican has filed a bill that would allow designated individuals to access the digital accounts of people who have died or become incapacitated.  This year, Delaware became the first state to pass such a law.   

Under Hukill’s bill, an executor, personal representative, trustee or guardian would treat electronic property as part of an estate’s assets, and those representatives could inventory the digital accounts as with other physical assets and dispose of them properly.  In order to gain access to the accounts, a request would be sent to companies that act as custodians, such as Google or Facebook. 

See Access Bill: Clarify Online Life After Death, The Ledger, Dec. 13, 2014. 

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

December 14, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)