Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Tuesday, November 4, 2014

Use of Technology Creates New Ethical Will Trend

LaptopThe old tradition of ethical wills has been transformed into a new trend with the use of technology. An ethical will is not a legal document, but is used as an estate planning tool that passes down wisdom. An ethical will can be used to give surviving family members and friends closure and hope, and helps to alleviate some of the stress of the process, which can aid with estate administration and the family dynamic during the mourning period. Some individuals are using videos, PowerPoint slide shows, and apps, such as StoryCatcher, to create ethical wills. Ethical wills created with the aid of technology can include music, pictures and video clips, and can be kept online on websites such as Dropbox.

See Constance Gustke, The Ethical Will, an Ancient Concept, Is Revamped for the Tech Age, The New York Times, Oct . 31, 2014.

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

November 4, 2014 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

Leaving Behind Digital Assets

Computer 2

Until recently, estate planning meant doling out items such as cash and securities, tangible personal property, jewelry and collectibles, and intangible assets like patents or shares.  Now there is a new category that must be addressed known as “digital assets.”

Digital assets refer to the footprints we leave behind as we increasingly live our lives online.  Many of us have digital assets in the form of e-mails, family photos, social media, and online bank accounts. 

While managing all the passwords and leaving records of them for your loved ones is confounding, there are two other issues.  The first issue is whether these assets are even transferrable.  For example, when you download iTunes, e-books and audiobooks, you are only receiving a life estate, which is the right to use something while you are alive, but not to pass it on to your heirs. 

The other problem centers around whether you can lawfully give other people access to your accounts.  A large portion of estate planning is appointing an individual to act on your behalf if you become disabled or die.  These people, known as fiduciaries, should have access to these accounts.  However, user agreements generally prohibit this since companies fear violating federal privacy laws.

Users should put precautionary measures in estate planning documents to give their fiduciaries access to the accounts.  This wording should go into a person’s will, living trust, and durable power of attorney. 

See Deborah L. Jacobs, The Digital Footprints That We Leave Behind, Forbes, Oct. 31, 2014. 

October 31, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2014

CLE on Using Technology to Meet the Challenges of Today's Trust & Estate Practice

CLEThe American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE entitled, Using Technology to Meet the Challenges of Today's Trust & Estate Practice, Wednesday November 12, 2014, 12:30 – 2:00pm Eastern, online and by phone. Here is why you should attend:

The complexity of an estate planning practice places great demands on your time and your intellect. What are some of the best technological tools that estate planners can use today?

Technology offers time saving benefits of not repeating mindlessly similar computations, and prevents math errors. Join Fellows of the American College of Trust and Estate Counsel for a scintillating discussion of the latest developments in technology for estate planning.

Faculty will discuss:

  • the great and not so great of Document Assembly Engine (DAE) solutions
  • suggested sites for commercial spreadsheets and information on preparing your own
  • tips for producing client diagrams and flowcharts
  • iPad and iPhone apps for trust and estate practitioners
  • free web site resources from The American College of Trust and Estate Counsel (ACTEC) and the ABA Real Property, Probate and Trust Law (RPTE) Section
  • research and other resources on the Internet for trust and estate practitioners

October 23, 2014 in Conferences & CLE, Estate Planning - Generally, Technology, Trusts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

New Estate Planning Tool: Estate Assist

Digital lock

A new online estate planning tool aims to help users store all of thier online passwords, social media accounts, digital health records, banking information, and other paperwork. 

Estate Assist works as an online safe deposit box that stores your online and offline information in one place.  In addition to helping users choose which accounts to add, Estate Assist uses an API from Intuit to automatically pull linked accounts and prompt users to change updated information in Estate Assist.  Once all of your assets have been uploaded, users can choose to share the accounts with designated trustees such as friends, family, or their lawyer.   

October 22, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

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

Computer 2

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)