Wills, Trusts & Estates Prof Blog

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

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Thursday, August 14, 2014

New Law Authorizing Access to Digital Assets

Computer 2On Tuesday, Delaware Governor Jack Markell signed legislation authorizing fiduciaries to access and control digital assets and accounts of those they represent.  The law recognizes that more people are piloting more of their lives online, which can pose challenges when a person dies or becomes incapacitated.  The new law permits fiduciaries to access email, social media, financial management, health care and other digital accounts. 

Developed by the Uniform Law Commission, this law is the first of its kind in the country. 

See Associated Press, Delaware Fiduciaries Gain Access to Digital Assets, The Washington Post, Aug. 12, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

August 14, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Government Agency Warns Consumers of Virtual Currency Risks

BitcoinAs I have previously discussed, virtual currency is a growing market with over 200 currencies for investors to choose from. The Consumer Financial Protection Bureau (CFPB) is now warning consumers of the risks of using virtual currency. In a Consumer Advisory issued on Tuesday, the CFPB, warned consumers of the risks of hackers, scams, and the lower level of built in protection when using virtual currency. The CFPB also informed the public that they can now report virtual currency related complaints to the CFPB’s consumer complaint database.

See Allyson B. Baker, Suzanne F. Garwood & D.E. Wilson, Jr., CFPB Issues Consumer Advisory Concerning Virtual Currency, Mondaq, Aug. 12, 2014.

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

August 14, 2014 in Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, August 10, 2014

Crowdfunding for Funerals on the Rise

Fundraising1With the median cost of funerals over $7,000, families that are unexpectantly faced with the high cost after the sudden death of a family member may look to creative solutions to cover the cost. One option increasing in popularity is online crowdfunding. Crowdfunding websites allow for the family to create an online donations campaign. Sites that have become popular for funeral campaigns include GoFundMe.com and YouCaring.com. It is important for campaign creators to be honest and clear about the purpose and intentions for the donations, and to keep in mind that state and federal laws apply to the donation campaign promises.

See Kayleigh Kulp, Crowdfunding Funerals: What You Need to Know, Fox Business, August 8, 2014.

August 10, 2014 in Death Event Planning, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

Article on the Stored Communications Act and Digital Assets

David horton

David Horton (University of California, Davis, School of Law) recently published an article entitled, The Stored Communications Act and Digital Assets, Vanderbilt Law Review, Vol. 67 (2014).  Provided below is the abstract from SSRN:

The story has become all too familiar. Someone dies, and her loved ones request the contents of her text, email, or social media accounts. Perhaps they wish to preserve this vibrant electronic slice of the decedent’s life. Perhaps they are compelled in their grieving to sift through the minutiae of the decedent’s final days. Or perhaps they are merely trying to fulfill their duty as trustee, executor, or administrator to pay the decedent’s bills and inventory her property. However, the decedent’s Internet Service Provider (“ISP”) — be it Facebook, Yahoo!, or Microsoft — refuses to comply.

As Naomi Cahn explains in her outstanding contribution to the Vanderbilt Law Review’s Symposium on the Role of Federal Law in Private Wealth Transfer, these ISPs are afraid of a byzantine federal statute from 1986: the Stored Communications Act (“SCA”). Section 2701 of the SCA criminalizes unauthorized access to electronic communications: a seemingly nasty glitch for fiduciaries attempting to marshal a decedent’s digital assets. Section 2702 bars ISPs from disclosing a customer’s private data without her “lawful consent.” Citing the fact that the SCA predates the rise of email — let alone the phenomenon of a valuable Twitter account — Professor Cahn argues that the statute should not govern fiduciaries. Alternatively, assuming that the SCA does apply, Professor Cahn discusses various ways around this obstacle, including the Uniform Law Commission’s draft Fiduciary Access to Digital Assets Act (“FADA”), which would clarify that fiduciaries generally enjoy the “authorization”’ and “lawful consent” necessary to acquire a decedent’s online accounts. 

This short invited reply takes a different route to the same destination. It begins by offering a reading of the SCA that diverges slightly from Professor Cahn’s. However, it uses that discussion to echo her critique of the SCA and bolster the case for the FADA.

August 6, 2014 in Articles, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Digital Assets Bill Pending Signature in Delaware

LaptopAs I have previously discussed, a bill on digital asset access for executors is pending in Delaware. The bill has passed the Delaware Legislature and the bill’s fate is now up to Governor Jack Markell. The bill is similar to the model law for digital asset treatment after the death of the account holder. Like the model law, the Delaware bill gives the executor of an estate access to digital assets even if the “terms of service” for the account say otherwise. The individual can still choose for a different outcome than the default rule that the bill will create by specifying their wishes.

See Jenni Bergal, Access to Online Accounts of Deceased Not a Given, The Columbus Dispatch, August 3, 2014.

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

August 6, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

The Tweets Live On

Mr. LaptopAs I have previously discussed, many private companies are developing ways for their clients and account members to plan for how their online accounts and digital assets will be handeled after they die. Now, Twitter has put their hat in the ring, and with a twist. Soon, Twitter users that just can’t live without tweeting may not have to stop just because their dead. The LivesOn app is currently in beta testing, but may be able to provide a way for the tweets to live on.

See Connie Rock, I’ll Tweet When I’m Dead: Estate Planning in the Digital Age, Flip the Media, July 28, 2014.

July 30, 2014 in Death Event Planning, Estate Planning - Generally, Humor, Web/Tech | Permalink | Comments (0) | TrackBack (0)

There May be a New Player in the Digital Currency Game

BitcoinAs I have previously discussed, there are many digital currencies on the market, and the IRS issued a notice in March on how they will be taxed. A new digital currency may be hitting the market soon. There is currently a plan to develop the Peso Digital of Mexico. The Peso Digital would modeled off of bitcoin. The Chief Executive of Peso Digital, Luis Daniel Beltrán, believes that is more countries create their own bitcoin like digital currency it will create a transparent system that is more trusted.

See Victoria Wagner Ross, Will the Peso Become a Digital Currency?, Examiner, July 27, 2014.

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

July 30, 2014 in Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Funding GRATs With Bitcoins

BitcoinAs I have previously discussed, the IRS issued a notice in March that announced that for tax purposes bitcoins and other virtual currency will be treated as property. This notice created more certainty for using bitcoins for financial planning purposes, but many details are still unclear. Since bitcoin value can increase greatly and rapidly, some grantors wish to fund grantor retained annuity trusts (GRATs) with bitcoins. However, this same value fluctuation that can result in spikes in value, also makes funding trusts with bitcoins risky. Bitcoins are also an attractive funding source because administration of bitcoin GRATs are relatively low maintenance since transfers are simple and inexpensive.

See Ivan Taback & Nathaniel Birdsall, The Bitcoin GRAT, Wealth Management, July 2, 2014.

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

July 29, 2014 in Estate Planning - Generally, Non-Probate Assets, Trusts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2014

A Proposal for the Future of Digital Estate Planning

Ipad

Last week, the Uniform Law Commission drafted the Uniform Fiduciary Access to Digital Assets Act, which is a model law that would let relatives access the social media accounts of the deceased.  Because so many of us live more of our lives online, more of what used to be tangible turns digital.  “Where you used to have a shoebox full of family photos, now those photos are often posted to a website.”

The goal of the Uniform Fiduciary Access to Digital Assets aims to make the digital shoebox equally accessible to family members.  “This is the concept of ‘media neutrality’ . . . . The law gives the executor of your estate access to digital assets in the same way he had access to your tangible assets in the old world.  It doesn’t matter if they’re on paper or on a website.” 

The ULC’s proposed law would override terms-of-service agreements that specify the user alone can only access his or her account. 

Yet companies such as Facebook see a downside to the proposed law.  “The bill takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased . . . This would include highly confidential communications from third parties who are still alive---doctors, psychiatrists, and clergy.”

See Molly Roberts, A Plan To Untangle Our Digital Lives After We’re Gone, All Tech Considered, July 23, 2014. 

July 24, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Digital Estate Planning

ComputerMany people fail to consider what will come of your online accounts when you die.  While grieving relatives might want access for sentimental reasons or to settle financial issues, you may not want a spouse going through every single e-mail. 

The Uniform Law Commission was on track Wednesday to endorse a plan that would give loved ones access to, but not control over, the deceased’s digital accounts, unless otherwise specified in a will.  If the legislation is adopted by the legislature, a person’s online life could become as much a part of the estate plan as deciding what to do with physical possessions. 

Privacy advocates are skeptical of the proposal.  “The digital world is a different world from offline.  No one would keep 10 years of every communication they ever had with dozens or even hundreds of people under their bed.”

While some tech providers have come up with their own solutions, the Uniform Law Commission’s proposed law would trump access rules outlined by a company’s terms of service agreement, although the representative would still have to abide by other rules including copyright laws. 

See Anne Flaherty, What Happens to Your Online Accounts When You Die? Associated Press, July 16, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

July 17, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech, Wills | Permalink | Comments (0) | TrackBack (0)