Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Monday, February 23, 2015

Article on Private Contracts and Digital Assets

Natalie Banta

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.

February 23, 2015 in Articles, Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

Article on Digital Asset Dilemma

Computer 2Matthew 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.

February 22, 2015 in Articles, Estate Administration, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Option Added to Designate Facebook Heir

FacebookFacebook is now offering additional options to treatment of an account after the user dies in addition to memorialization. As of today, Facebook users in the U.S. can designate a "legacy contact," which includes choosing a Facebook friend to take over the account in a limited capacity after the user dies.

The legacy contact is given the ability to download posts and photos, respond to new friend requests, and post memorial posts to the page. However, the legacy contact cannot delete anything from the account or view private messages. Users can also choose an alternative option to have the account deleted after their death. If neither option is opted for, the default of freezing the account through memorialization will occur.

See Geoffrey A. Fowler, Facebook Heir? Time to Choose Who Manages Your Account When You Die, The Wall Street Journal, Feb. 12, 2015.

Special thanks to Eric G. Reis (Thompson & Knight LLP) for bringing this article to my attention.

February 12, 2015 in Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Social Media Post Prompts Robbery

Police lightsSocial media posts may have prompted three men to rob a northeast Philadelphia home.  Detectives say three men wearing ski masks armed with pistols kicked in the door of a residence demanding jewelry and other valuables from the 19-year old resident.  Authorities said the robbers had seen recent social media postings from a resident that he had recently inherited expensive jewelry. 

See Associated Press, Pa. Home Robbed After Man Posts on Social Media About Inheritance, Penn Live, Feb. 8, 2015.

February 9, 2015 in Estate Administration, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Death and Digital Data

Computer 2

A controversial new state law is making it easier for estate executors to access digital data that include email, photos, and social media posts, after the account holder dies. 

Because many Internet companies limit access to customers’ accounts, when the account holder dies, estate executors typically must obtain a court order to gain access to the account—which can be both expensive and time consuming.  Under a Delaware law passed last summer, executors can now access online accounts without a court order, unless otherwise specified by the deceased.  Similar legislation is to be considered in several other states. 

The new Delaware law gives access to those serving as agents for the deceased under a power of attorney and those serving in a fiduciary role.  This means that the law could extend beyond Delaware’s borders, making it possible for trustees to access digital data of a person’s assets that are placed in a Delaware trust.  

Delaware’s law, called the Fiduciary Access to Digital Assets and Digital Accounts Act, is designed to give legally appointed fiduciaries the same access to digital assets as they would have for more tangible assets, but not without restraints.  The law requires the fiduciary to follow the deceased or incapacitated person’s instruction for how accounts should be managed.  If there are no written instructions, the fiduciary may act how he or she sees fit. 

See Rachel Emma Silverman, When You Die, Who Can Read Your Email?, The Wall Street Journal, Feb. 1, 2015.

Special thanks to Eric G. Reis (Thompson & Knight LLP) for bringing this article to my attention.

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

February 2, 2015 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

New Option for Retrieving Social Security Info

Social security 1

Baby Boomers and others receiving Social Security payments have a new option if they lose tax paperwork. 

The Social Security Administration is beginning a service that allows recipients to instantly view a replacement SSA-1099 online at www.socialsecurity.gov.  The tax filer could print out that form and subsequently use it to prepare taxes.

Each year, Social Security receives 1.7 million requests for replacement forms.  The online option can save several steps and avoid the hassle of visiting or calling a Social Security office for a replacement 1099. 

See Susan Tompor, Social Security Recipients Can Get Tax Info Online, USA Today, Feb. 1, 2015.

February 2, 2015 in Elder Law, Estate Planning - Generally, Non-Probate Assets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

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

Computer 2

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)