Sunday, September 22, 2013
As I have previously discussed, many people possess “digital assets” that may be of great value to them. However, the value of web domains, photos, videos, email, and social-media accounts may be lost if the owner does not take proper legal steps ahead of time.
A will can be used to designate someone who will have access after an account-holder dies, but some sites like iTunes do not allow anyone to inherit an account. One way around these limits would be to place the license and necessary passwords in a trust. Licenses may cease to exist upon the death of the account-holder but access to accounts can be preserved if the license is placed in a trust.
The Uniform Law Commission has met to discuss a proposal to draft a law giving fiduciaries the right to manage and distribute clients’ digital assets, which would make it easier for consumers to bequeath online property. Only Connecticut, Idaho, Indiana, Oklahoma, and Rhode Island currently give fiduciaries this right.
See Arden Dale, Make Sure You Know Who Will Inherit Your Twitter Account, The Wall Street Journal, Sept. 18, 2013.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, September 20, 2013
Starting October 1, 2013 the Superior Court in San Diego is asking attorneys to E- file probate documents. Documents may be filed electronically if 1. the case is initiated on or after October 1; or the case is already pending as of September 30 and has been imaged by the court. Permitting the E-filing is one of the ways that the San Diego Superior Court is handling the budget cuts. Over the past five years, the budget cuts have eliminated more than 170 court positions and shut down a few courtrooms.
Probate Judge Julia Kelety explained, “Our Probate Court is very pleased to offer electronic filing for court documents. It’s a win-win situation for the court and our customers, because it allows the court to handle the paperwork more efficiently, while at the same time the people who use our court will benefit from the convenience of filing documents remotely. This is particularly critical since budget cuts forced the closure of the North County probate court.”
See Karen Dalton San Diego Superior Court Begins E-Filing in Probate, News Release, Sep. 19, 2013.
Special thanks to Adam J. Hirsch (Professor of Law, San Diego School of Law) for bringing this article to my attention.
Wednesday, September 18, 2013
The typical American accesses over two dozen password-protected sites, many of which contain their digital assets. The average American values these financial investments and sentimental attachments at about $55,000.
To preserve these digital assets, you should find a way to store your passwords to enable your loved ones to quickly handle online bills and accounts. You can of course keep a handwritten list somewhere safe or use an online password protection company like 1Password, PasswordSafe, and LastPass.
Beyond password protection, you may also need to think about how your loved ones can manage accounts. Google offers an Inactive Account Manager that will notify and give access to a listed contact when your account has been inactive for a certain period of time. Other services like Legacy Locker offer a “digital vault” that allows you to assign beneficiaries to online accounts. Similar companies include AssetLock, Cirrus Legacy, and SecureSafe.
For more information, see my article entitled, Estate Planning in the Digital Age.
See Naomi Cahn & Amy Ziettlow, A Digital Afterlife, Slate, Sept. 16, 2013.
Tuesday, September 17, 2013
Jamie P. Hopkins (The American College) recently published an article entitled, Afterlife in the Cloud: Managing a Digital Estate, 5 Hastings Sci. & Tech. L.J. 209 (Summer 2013). Provided below is the introduction to his article:
Astounding technological innovations and widespread access to the internet has ushered in a new lifestyle: the digital life. This new digital lifestyle has resulted in the digitalization of businesses, social lives, and wealth, creating unprecedented legal challenges, and perhaps, more than ever before, reinforcing Benjamin Franklin's eloquently stated notion that “nothing can be said to be certain, except death and taxes.”
With the digitalization of assets and property, estate planning for the digital world has become increasingly complex. Traditionally, transferring property, wealth, and assets from one generation to another has been a fundamental property right and a primary focus of estate planning. However, the growth of the internet, development of digital lifestyles, and digitalization of assets are challenging the effectiveness of traditional estate planning mechanisms. For example, by end of 2012, an estimated thirty-million Facebook profiles will have outlived their owners. These digital legacies are left behind long after people die, begging the question: “What happens to my digital life when I die?”
Section II of this paper discusses the development of the digital life and the digitalization of assets. Section III examines challenges presented by planning for the disposition and management of digital assets. Section IV compares existing estate planning techniques for digital assets, highlighting privacy, security, and efficiency concerns with current strategies. Section V proposes a variety of recommendations in order to reinforce the property, privacy, and estate planning rights of digital asset owners. Lastly, Section VI will conclude the article with a discussion regarding the importance of balancing traditional estate planning methods with digital estate concerns without jeopardizing a deceased's privacy, security, and legacy goals.
Thursday, September 12, 2013
In Ehling v. Monmouth-Ocean Hosp. Serv. Corp., the United States District Court for the District of New Jersey held that the Stored Communications Act (SCA) protects private Facebook wall posts from unauthorized user access.
The SCA is a pre-Internet statute that “generally prohibits unauthorized access to non-public electronic communications that were transmitted by an electronic communication system and are in electronic storage.”
Despite the court’s holding that the plaintiff’s private Facebook wall posts were protected, the court still granted summary judgment against the plaintiff because she had authorized a “friend” to see the posts. The friend then sent screenshots to her employer, which led to her suspension. The court held the suspension was permissible under the SCA’s “authorized user” exception.
See John Connelly, United States: District Court Holds That Stored Communications Act Protects Private Facebook Posts, Mondaq, Sept. 12, 2013.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Wednesday, September 11, 2013
The 39th Annual Norte Dame Tax and Estate Planning Institute is offering a CLE entitled, Tax and Estate Planning Institute, on October 17-18, 2013 in South Bent at the Century Center. Provided below is a description of the event:
With the permanence of the $5,000,000 transfer tax exemptions, fewer clients will need transfer tax planning. The 39th Institute will cover topics that will always be a concern, even for families below the $10,000,000 exemption, such as the transfer of the family business to the next generation, especially when some of the children will not be actively involved, how to deal with unusual assets, especially digital assets that did not exist until recently, concerns with second marriages, problems with prenuptial agreements when there is a divorce and the creditor’s approach to asset protection trusts.
Since estate planning is one of the few practice areas clients deal with well in advance, the estate planning profession has a unique opportunity to introduce income tax planning opportunities. Several sessions will explore the use of estate planning techniques for income tax planning, such as assignment of income to taxpayers in lower marginal income tax brackets, state income taxes, deferral of reporting income, sheltering investment income from income taxation and using the tax-free step-up in basis at death for appreciated assets. Several sessions will focus on mistakes that may arise with common techniques, risks certain techniques pose and potential flaws inherent in certain techniques. These sessions will also explain concepts that can be misunderstood or that commentators commonly get wrong (or exaggerate).
Thursday, September 5, 2013
Robert Keebler has recently published a podcast by Leimberg
Information Services, Inc. regarding Revenue Ruling 2013-17 which
determines the status of a same-sex couple lawfully married under a
state that recognizes the marriage. The article is reproduced courtesy
of LISI (Leimberg Information Services, Inc.)
You’ll gain in depth knowledge on sophisticated planning and drafting techniques for IRA qualified plan distributions, as well as tax efficient investing.
For detailed information please click here.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Tuesday, August 20, 2013
Most people have social media accounts. In Asia, US, and Europe the laws have provided little guidance as to what happens to these accounts once you pass away. In most Asian countries, the ownership of your personal data goes back to the companies. However, US privacy laws protect user privacy even when you die. In fact, some Internet service providers are concerned about violating privacy laws so companies in the US are less likely to make your information public.
The companies in charge of social media accounts have handled inactive accounts in a variety of different ways. Facebook can memorialize your page, which prevents people from logging on to your inactive account. Twitter will deactivate your account so long as a death certificate is sent to the company. Google has enacted an inactive account manager app, which transfers your idol account to a delegated user after your death.
Estate Planners recommend drafting a will so that your personal representative will gain access to your social media accounts. For people without a will services such as “Perpetu” will help you manage your accounts post mortem. Despite these helpful services, there is some concern about conflicts between the estate plan and the account services. For some, it is much easier to keep an updated list of all of your accounts with their corresponding passwords to avoid the headache.
See When you Die Does Your Facebook Go Too?, Wall Street Journal Live , Aug. 14, 2013.
Friday, July 12, 2013
A British ad agency Lean Mean Fighting Machine, developed a project to allow Twitter users to tweet post mortem. The project is called LivesOn. When the user is deceased a designated family member has the option to make the account go public. The project is really an artificial intelligence experiment. The tweets are supposed to mimic the persons tweet frequency, style, and more. The LivesOn accounts are private and only shadow one person to learn their tweet style. More than 7,000 users have signed up world wide. However, only five people are working on the project.
See Program lets Twitter Users Tweet After Death, CBC, Mar. 10, 2013.
Wednesday, July 10, 2013
As I have previously discussed, the law currently lags behind technology when it comes to digital assets.
In the months following Eric Rash’s suicide in 2011, his parents were denied access to their son’s Facebook account as they desperately searched for answers.
But recently Virginia Governor Bob McDonnell invited the parents of Eric Rash to witness him sign legislation guaranteeing parents the right to access a child’s digital assets following the death of the child.
The legislation will give parents and legal guardians rights to deceased minor’s social media accounts by adding digital assets to Virginia’s probate laws.
See Tracy Sears, Family Wins in Fight Against Internet Giants, On Hand When Governor Signs Law, WTVR, July 2, 2012.