Wills, Trusts & Estates Prof Blog

Article on a Proposal to Manage Digital Assets After Death

Chelsea Ray (J.D. Candidate 2013, University of Oregon School of Law) recently published an article entitled, 'Til Death Do Us Part: A Proposal For Handling Digital Assets After Death, 47 Real Prop. Tr.& Est. 583 L.J. (Winter 2013). Provided below is the editor's synopsis from the Real Property, Trust and Estate Law Journal:

As electronic communication continues to pervade the daily lives of modern individuals and allow us to instantaneously develop and document intellectual property, this Article questions whether states are prepared to protect these digital assets after owners' deaths. Specifically, it discusses whether state legislatures should follow Idaho, Rhode Island, Indiana, Connecticut, and Oklahoma in enacting legislation that protects decedents from identity theft and provides personal representatives with the ability to access decedent online accounts, such as Facebook, Twitter, e-mail, and blogs to identify and dispose of valuable digital property. After analyzing the key problems faced by personal representatives, this Article concludes that legislatures should address issues in this field as soon as practicable and provides a draft associated with identifying and disposing of digital assets. Further, until legislatures enact solutions, the author urges that individuals leave specific instructions for the disposal of their digital assets.

Digital Asset Protection Post Mortem

As I have previously discussed, many people are realizing the difficulties with digital asset management after death. It is wise to include any on-line presence in the estate planning process. Not doing so may make you vulnerable to identity theft after your death. Additionally, it may cause challenges in settling debts and recovering family photos or momentos. Moreover, some digital assets hold value such as domain names and music libraries. Each on-line provider has terms and restrictions that may challenge executors or heirs who are trying to settle debts. Some providers have a process to give relatives access, but it is usually long and requires a court order. Another obstacle that planners face is the federal law. Using relative's passwords may be against the law depending on the jurisdiction. It might be a good idea to make a list of all your on-line accounts with your login and password information and keep it in a safety deposit box.

See Eleanor Laise, Protect Digital Assets After Your Death, Kiplinger, May 2013.

Article on Managing a Digital Estate

Jamie Patrick Hopkins (Assistant Professor of Taxation, The American College of Financial Services) recently published an article entitled, Afterlife In the Cloud: Managing a Digital Estate, 5 HASTINGS SCI. & TECH. L.J. 210 (2013). Provided below is the abstract from SSRN:

The rapid development of electronic devices and widespread access the internet has ushered in a new age: the digital age. The digital age has changed the manner in which assets are created and transferred. This digitalization of wealth challenges the effectiveness and efficiencies of traditional estate planning mechanisms. Additionally, modified estate planning techniques and the development of digital estate planning services have created serious privacy, security, and efficiency concerns for the transfer and management of digital estates. As such, creative and innovative digital estate planning solutions are required to ensure the privacy, security, and proper disposition of digital estates. However, because the problems facing digital estate planning are complex, a combination of legislative action and improved online service agreements are essential to solving the digital estate dilemma. Until digital asset ownership and transferability questions are resolved, digital estate planning will remain in flux as traditional estate planning appears ill suited for the management and disbursement of digital assets.

More on the Interactive Account Manager From Google

As I have previously discussed, Google has taken a large step towards allowing its subscribers to determine what happens to their digital assets following their death. What has not been discussed is the fact that Google has built several safeguards into the program. The most important consideration that a person needs to make with the Interactive Account Manager is that the dashboard is not only for death event planning. The system will come into effect if the account is inactive for a period of time. In fact, the system was designed to only come into effect when a person's account has been inactive for a certain period of time. For Google, inactivity means death. This means that the protocol might go into effect if a person decides to travel for a period of time and does not use Google throughout that period of time. Fortunately, "Google will give you a one-month warning before pronouncing you departed and setting the system into action." Thus, if a person is planning a long journey, it is imperative that the person who is traveling has given Google a way to contact that person.

Furthermore, it is cannot be stressed how important this new feature might be for our posterity. The Internet has almost replaced actual letter writing in the modern age and so this could an excellent way to archive our person history in the modern era. This will also solve a current problem with family members not having access to a loved one's online assets following their loved one's death. 

See Kashmir Hill, Will You Use Google's Death Manager To Let Loved Ones Read Your Email When You Die?, Forbes, Apr. 11, 2013.

Google Lets User Name Heirs

Google has become the first Internet company that deals with digital assets to allow its users to control the disposition of their data after their death. Google has introduced a new dashboard, which can be found here, that will allow its user to decide what should happen to their data when they pass away or even if they become incapacitated. The dashboard's feature will allow a user to delete their data belonging to all of Google's social media websites "after three, six, nine or 12 months of inactivity." A user could also choose one or even more users to inherit their data. Google calls the new dashboard its "'Inactive Account Manager.'"

Unfortunately, the new option does not allow its user to control the disposition of their accounts after their death only the data. So, think of it in this manner. A user can only transfer their emails, not the ability to email from their account.

See Geoffrey A. Fowler, Google Lets Users Plan 'Digital Afterlife' By Naming Heirs, Wall Street Journal, Apr. 11, 2013.

Another State Rides the Digital Assets Bill Wave

As I have previous discussed, several states have brought forward bills in their respective legislatures that would provide access to the personal representative of a decedent's estate to his or her digital accounts. The most recent were Oregon and North Carolina. Well, now you can add Nevada to the growing list of states with this type of legislation. Provided below is a link to the original text of Senate Bill No 131.

See Senate Bill No. 131, Senate and Assembly of Nevada, Feb. 18, 2013.

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

North Carolina Digital Assets Bill

As I have previously discussed, several states have brought forward bills in their respective legislatures that would provide access to the personal representative of a decedent's estate to his or her digital accounts. Now, it looks like North Carolina has become one of the newest states to introduce legislation to change whether the personal representative of an estate should have access to the digital accounts of the decedent. Provided below is a link to Senate Bill 279.

See Senate Bill 279, General Assembly of North Carolina, Session 2013.

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

Oregon Digital Assets Bill

As I have previously discussed, several states have brought forward bills in their respective legislatures that would provide access to the personal representative of a decedent's estate to his or her digital accounts. Now, it appears that Oregon has joined this expanding group. The 77th Oregon Legislative Assembly has introduced Senate Bill 54, which also provides access to the personal representative of a decedent's estate to his or her digital accounts. Provided below is a link to the original text of Senate Bill 54.

See Senate Bill 54, 77th Oregon Legislature Assembly, 2013 Regular Session.

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

Good Ratings for the ACTEC Wealth Advisor App

Donald Kelley gives the ACTEC Wealth Advisor App five out of five stars. The ACTEC Wealth Advisor is an ipad app that allows professionals to search for ACTEC fellows, frequently cited statutes, and reference the Applicable Federal Interest and 7520 rates. In addition, the application allows its users to calculate GRATs. Finally, the application acts as a news source and provides up to date information on estate planning legislation from United States Congress and the states. 

Please click here to download the app. 

See Donald Kelley, The ACTEC Wealth Advisor App, WealthManagement.com, Mar. 13, 2013. 

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

30 Blogs That Should Help You Write A Will

These are the top 30 blogs that might be able to help a person draft his or her first will and keep it up to date. The blogs are divided into different categories:

These are top 5 blogs that provide its readers with a reason for creating a will:

• Top 10 Reasons You Need to Get a Will ASAP
• 5 Reasons to Write a Will – Small Step Challenge
• It’s Never Too Early to Make Your First Will
• 4 reasons young people should create a will
• Reasons To Consider Creating A Will

These are the top 5 blogs that explain what a drafter should include in his or her will:

• What Not To Include When Making a Will
• Make Your Will: A Quick Checklist
• What To Put In A Living Will
• Ten Things to Include in Your Will
• 7 Things to Include in Your Will

These are the top 5 blogs that provide advice on how to avoid a will contest:

• How to avoid disputes over inheritance estates
• Avoiding Wills Disputes? What Your Estate Planning Attorney Needs
• Big Estates? Avoid Disputes
• Decide Your Will Smartly to Avoid Property Disputes
• Will Contests & Estate Disputes – Five Ways to Avoid a Family Feud

This one is particularly important for most readers. These blogs discuss how to choose an executor for that person's will:

• What Does an Executor of a Will Do?
• Everything You Generally Need to Know about Choosing an Executor
• Choosing an Executor, Health Care Proxy, & Others
• Choosing the Right Trustee or Executor For Your Estate
• Tackling Troublesome Executors

These 5 blogs explain how the drafter might go about changing his or her will:

• Updating Your Will
• Making Changes To Your Will
• How to Make Changes to Your Will
• Adding a Codicil to Your Will
• Keeping Your Will Up-To-Date

These top 5 blog entries discuss how a person can keep his or her will:

• Keeping your Last Will and Testament Safe
• Storage & Safekeeping of a Will
• Keep your Will safe
• Do You Know Where Your Will Is?
• The Challenge of Keeping Your Last Will and Testament Safe

See Kenney Myers, 30 Blogs To Help You Draft Your First Will, kenneymyers.com, Mar. 11, 2013.

Law Lags Behind Technology When It Comes To Digital Assets

This is not an uncommon topic for this blog. In particular, I have previously discussed the situation that Mr. Ricky Rash and his wife Diane Rash found themselves in following the suicide of their son. Mr. and Mrs. Rash attempted to gain access to their son's Facebook account to gain some insight and hopefully some answers about why their seemingly normal and happy son would choose to end his life. Unfortunately for his parents, they were not able to gain access their son's account because of Facebook's privacy policy. For an in depth discussion about this topic, here is a video from PBS featuring Ms. Naomi Cahn from the George Washington University School of Law and Evan Carroll, a co-author of the book Your Digital Afterlife with Jeffrey Brown.

See Jeffrey Brown, Naomi Cahn, and Evan Carroll, Law Lags Behind in Defining Posthumous Protocol Online for Online Accounts, PBS Newshour, 2013.

App Allows You to Leave a Video Behind When You Die

"If I Die" is an app that allows you to create a video or text message to be published after you die. Please click here if you are interested in exploring the app further. 

 

Facebook and Twitter Allow Posts Post-Mortem

There is one sobering fact about death that we all must face, which is that we cannot take the things that we hold dear with us. Blog posts and items that we place on Facebook or Twitter are no different. Once we die, we cannot continue to update our Facebook pages and send tweets to our followers. Well, technology has changed all of that again. Now, "[t]echnology companies are making it possible for you to send a prewritten email, Facebook status update or Tweet after death." DeadSoci.al is the company behind this technology. While the founder sees it as a way for us to say a final goodbye, others are looking to take it to another level. Some hope that technology will enhance to the point where there will be a way to ensure that a person's Twitter account stays active and provides regular updates that are suppose to mimic the user's personality.

See Tools Allow Facebook, Twitter Posts After Death, Fox 19, Feb. 22, 2013.

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

More on Sperm Donor Case

As I have previously discussed, William Marotta, a man who helped a lesbian couple conceive a child after seeing their advertisement on Craigslist, is being sued by the State of Kansas to collect child support. Mr. Marotta was originally scheduled to give his deposition on President's Day this year but that testimony has been delayed. The delay came from a scheduling conflict between the attorneys. The hearing has been re-scheduled for April 9.

See Sperm Donor Deposition Delayed, WIBW.com, Feb. 12, 2013; see also Tim Hrenchir, Sperm Donor Case: Marotta To Give Deposition, The Capital-Journal, Jan. 31, 2013.

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

Virginia Senate Passes HB 1752

As I have previously discussed, the Virginia piece of legislation that would provide personal representatives access to the decedent's electronic accounts passed the Virginia House of Representatives by a vote of 96-0 with 4 abstentions. Now, the most recent news out of Virginia is that the Senate has also chosen to pass the bill. The Senate passed the bill unanimously by a vote of 40-0. This comes as a surprise because almost did not make it out of committee, where the vote was only 8-6. A person can continue to follow the progress of the bill here.

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

Update On Virginia Digital Assets Bill and Others Around the Country

As I have previously discussed, the House of Delegates in Virginia recently passed a bill that would provide access to a testator's personal electronic accounts to the personal representative of the estate. Now, it is the Senate's turn to debate the merits of this bill. Provided here an amendment that the Senate proposed that provides a substitute to the original bill. While I have not discussed these particular bills before, the State of Maryland and North Dakota have also introduced similar legislation. Maryland Senate Bill 29 can be found here. North Dakota House Bill No. 1455 can be found here. 

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

Study on Access To Electronic Accounts by The Executor or Administrator of Estate

As I have previously discussed, there are only a number of states that have passed laws that provide administrators of an estate access to the electronic accounts of the decedent. This group includes Connecticut. Now, the General Assembly of Connecticut has introduced an act that would study the effects of allowing the public administrator of an estate to have access to the testator's electronic accounts following their death. Provided here a copy of Proposed Bill No. 5227.

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

Digital Assets Bill Passes House In Virginia

As I have previously discussed, the State of Virginia brought legislation to the House floor that would provide the personal representative access to a deceased minor's online accounts following their deaths. More specifically, the law "[p]rovides that the personal representative of a deceased minor has the power to assume the deceased minor's terms of service agreement with an internet service provider, communications service provider, or other online account service provider for the purposes of consenting to and obtaining the disclosure of the minor's digital assets." Recently, the Virginia House of Representatives passed the bill with a vote of 96-0-4. 

See HB 1752 Personal Representatives; Internet Provider Shall Provide Access To Deceased Minor's Digital Assets, Virginia's Legislative Information System, Feb. 5, 2013.

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

REITbid, an Online Auction Platform

REITbid is now offering "a new online auction platform that matches buyers and sellers of shares in existing non-traded public real estate investment trusts (REITs)." The program is designed to create a easy way to make illiquid assets liquid. According to REITbid, these are the advatanges to their program:

In addition to offering a liquidity option and streamlining the entire process of buying, selling and transferring shares, REITbid provides several other unique advantages including:

• User-friendly platform that is easy enough for virtually any qualified investor to use
• Transparency – provides instant access to non-traded REIT metrics and links to SEC filings and sponsor data; users can also view all pending bid activity on each auction
• Convenience – ability to bid on and find documentation about available non-traded REITs 24 hours per day
• Security – strict multi-layer protection of all documents and personal data

Kiplinger and NAPFA Partner to Offer Advice

On February 7 and February 12, Kiplinger and NAPFA will be partnering to offer free financial advice. There will be chat rooms on taxes and retirement, saving for retirement, income in retirement and other financial challenges.  The chat rooms will be from 9 a.m. to 5 p.m. on the 7th and the 12th.