Wednesday, March 25, 2015
Competing legislation is battling it out in state legislatures that represents the opposing interests of the tech industry and those advocating for uniform legislation on fiduciaries' access to digital assets of incapacitated and deceased individuals. During the drafting phase of the Uniform Fiduciary Access to Digital Assets Act, attempts were made to collaborate with tech industry representatives, such as Facebook, but were unsuccessful. Much of the tech industry is troubled by the Act, which overrides terms of service agreements of providers.
The battle between privacy and accessibility continues to wage through the states. The Uniform Act has only passed in Delaware, and the alternative Act representing tech industry interests, the Privacy Expectation Afterlife and Choices Act, has passed only in Virginia though it has not yet been signed into law.
See John DeBruyn, The Battle of the States Over Access to Digital Assets by Fiduciaries, Steve Leimberg's Estate Planning Newsletter #2292, March 24, 2015.
Special thanks to Steve Oshins (Oshins & Associates LLC) for bringing this case to my attention.
Saturday, March 21, 2015
Jason E. Havens (Property & Probate Magazine, Technology--Probate Editor) recently published a column entitled, Cloudy Choices: Desktops, Laptops, or Mobile Devices? from the Technology Probate section, 29 Probate & Property No. 2, 49 (March/April 2015). Provided below is an excerpt from the article:
During the past 10 years, radical changes have occurred in the personal computer market. Many of those changes originated in the mobile computing arena, some traceable to what used to be known as a cellular telephone. Now a so-called smartphone can easily process everything from documents to spreadsheets to presentations, along with crisp photographs, videos, and Internet browsing.
Some trust and estate lawyers are intrigued by the history of these devices, chronicled in biographies and films about the late Steve Jobs or Bill Gates, but most want to know which devices will assist them in producing work. This column will survey some popular products and platforms that this editor has used.
Monday, March 16, 2015
Montana could become one of the first states to answer the long-standing question: what happens to our Facebook posts, Tweets and other digital records when we die? A bill heard Thursday morning in the House Judiciary Committee would give your survivors access to your data, unless you leave specific instructions to the contrary.
Currently, individuals can leave behind instructions as to who can access your data, or even request that it be deleted upon death. However, it is unclear about what happens when a person leaves no instructions, and that is what this law attempts to clear up. The bill would allow the personal representative of the deceased person to access the person’s online accounts, to retrieve photographs, documents or anything else.
At least one social network is fighting back against the proposal. Dan Sachs, an associate manager for estate policy with Facebook, says the act of dying does not constitute giving consent to let other people see your digital data.
As of now, eight states have passed laws allowing survivors to access a person’s email, social media, etc. Nevada allows survivors to close accounts, but not access what is inside of them.
See Steve Jess, Montana Bill Would Give Survivors Access to Your Digital Data After You Die, Montana Public Radio, March 12, 2015.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Sunday, March 15, 2015
With the digital age comes the need for adding digital planning to estate planning. However, many clients do not consider or bring up digital assets when meeting with estate planning professional. More than access to social media accounts are at risk if this step is forgotten. Many accounts are now paid online, such as electricity, and a missed payment could mean the deceased or incapacitated person's home loses lights and power. Experts advise individuals create a master list of all online accounts with passwords that is kept outside the digital realm, such as on paper or a flash drive, and kept in a safe-deposit box with a location known to the person responsible for care of those accounts.
See Hannah Yang, Guide to Life: How to Handle Online Accounts During Estate Planning, The Columbus Dispatch, March 13, 2015.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Wednesday, March 11, 2015
The Portability Calculator is a tool intended to help with making the decision of whether to elect portability. The Excel based program includes inputting information in a three-step process, which results in production of a memo based on input. Two packages are available, including the downloadable Standard Package priced at $495 and the CDRom Premium Package for $695.
See Donald Kelley, The Portability Calculator, Wealth Management, March 10, 2015.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Tuesday, March 10, 2015
Sergio Pareja has written a review that discusses Naomi Cahn's new article entitled, Probate Law Meets the Digital Age. Provided below is an excerpt from the review:
Recently, estate planners and scholars have begun to grapple with the problem of transferring digital assets at death. In Probate Law Meets the Digital Age, Professor Naomi Cahn adds an interesting new dimension to this relatively new issue. She focuses on the effect of the Stored Communications Act (“SCA”) on estate administration. Although the SCA does not affect a fiduciary’s ability to distribute assets once they are discovered, it affects the fiduciary’s ability to examine on-line accounts to discover those assets.
For the rest of the favorable review, see Sergio Pareja, The Impact of Federal Law on a Decedent's Digital Assets, JOTWELL, March 9, 2015.
Monday, March 9, 2015
Imagine a social app that allows you to communicate with friends and family both in the present and up to 50 years in the future—even after you are gone. Whether you want to leave a last will and testament or send a greeting, the “What’s After” app may revolutionize the way we share ourselves and memories over time.
The WA-app offers many possibilities to communicate with others, including private chat and social dating. The app sends memories as text, pictures, audio or video after your passing away has been confirmed, making you globally connected and “virtually eternal.”
See PR Newswire, WA-App: The Time Capsule App That Makes You Virtually Eternal, SYS-Con Media, March 9, 2015.
The Privacy Expectation Afterlife and Choices Act is the first of its kind in the country, and aims to assure that a person ‘s electronic footprint remains off-limits after death except under very strictly controlled circumstances.
Delaware Republican Jay Leftwich proposed the original legislation, which would have granted the executor of an estate almost blanket access to the deceased’s email and other electronic accounts. While estate attorneys supported the legislation, lobbyists for online service providers were critical, warning that it would run afoul of their privacy policies.
The online lobbyists cast their lot with a rival measure offered by Senator Mark Obenshain; his bill began with the premise that people rightly expect their electronic communications to remain private upon death.
Leftwich and Obenshain subsequently huddled with lobbyists to obtain a compromise; a bill that passed the last day of the session. “We went through probably 20 different drafts,” Obenshain said. The final version gives an executor access to the “envelope” of information about the deceased’s online accounts for the 18 months before his or her death. This allows the executor to determine whether the deceased person received regular emails form a credit card company, bank, or investment brokerage and then to contact those institutions to settle the accounts.
See Bill Sizemore, Va. Legislation Seeks to Protect Digital Privacy After Death, The News Tribune, March 7, 2015.
Monday, February 23, 2015
Natalie M. Banta (Stetson University College of Law) recently published an article entitled, Inherit the Cloud: The Role of Private Contracts in Distributing or Deleting Digital Assets at Death, 83 Fordham L. Rev. 799-854 (2014). Provided below is the article’s abstract:
We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by a private contract entered into by an account holder and a company that provides services or digital products. This Article explores the growing conflict between traditional succession practices and digital asset succession, which is controlled by digital asset contracts. It begins by tracing the development of private contracts as a method of transferring assets at death and shows that although contracts are regularly used to transfer assets at death, digital asset contracts have taken an unprecedented step of prohibiting or severely limiting the transfer of assets at death. This Article next explores the prevalence of digital assets and explains how service providers address digital asset inheritance in private contracts. It argues that digital asset contracts that deny inheritance may be validly formed but should be void as a matter of public policy because they transfer decision-making power about assets from an individual account holder to corporations. As our control over the ultimate fate of our digital assets diminishes, the nature of our property interests in digital assets also shifts away from our traditional understanding of ownership of personal property. It argues that we should take a conscious approach to reforming succession law based on time-honored principles of American succession law that benefit society as a whole and not allow private contracts controlling digital assets to hijack our system of inheritance. This Article concludes by offering suggestions for reform and action before the ability to transfer and preserve digital assets falls beyond our reach.
Sunday, February 22, 2015
Matthew D. Glennon (Quinnipiac University School of Law) recently published an article entitled, A Call to Action: Why the Connecticut Legislature Should Solve the Digital Asset Dilemma, 28 Quinnipiac Prob. L.J. 48-72 (2014). Provided below is an excerpt from the article:
With the advancement of the Internet and its capabilities, traditional scrapbooks and photo albums are being digitalized, letters are being replaced with electronic mail ("e-mail"), and life-changing announcements are being broadcast across social-media. As the digitalization of an individual's life becomes more complex, society must address the question of what occurs in the event of that individual's death or incapacity. In the past, tangible property such as a scrapbook or letter could undoubtedly be devised. However, the law pertaining to digital assets remains murky at best.
This "digital asset question" is well illustrated by the harrowing saga of a Michigan family, the Ellsworths. Lance Corporal Justin Ellsworth was a Marine who was killed in action in 2004 while serving in Fallujah, Iraq. The Ellsworth family sought to create a memorial by using the e-mails Justin had sent and received while deployed, but were denied access to those e-mails by Yahoo!, per its terms-of-service. It was only after a lengthy and public court battle that Yahoo! gave the family access to Justin's e-mails. Although the e-mails were ultimately released, the Ellsworths' battle illustrates a need for legislative clarification for both internet service providers and families who will seek to obtain the digital assets of their loved ones in the future.