Monday, May 5, 2014
Samantha D. Haworth (University of Miami Law Review; J.D. Candidate 2014) recently published an article entitled, Laying Your Online Self to Rest: Evaluating the Uniform Fiduciary Access to Digital Assets Act, 68 U. Miami L. Rev. 535 (Winter 2014). Provided below is her introduction:
On July 27, 2012, a teenage girl named Alison Atkins passed away from colon disease. Her family turned to her online accounts for consolation and answers. The family had to circumvent the teen's computer password and use her computer's automatic log-in function to access Alison's Twitter, Facebook, Tumblr, and email accounts. Alison's online accounts contained conflicting characterizations of her life--happy family pictures and dark, private journals. Whether Alison wanted her online life viewed after her death was unknown. Nevertheless, the family's control over these accounts was fleeting, as the accounts eventually logged out or got deleted, and the contents were lost forever.
When Internet users die without planning for their digital lives, families and estate executors are left to guess the users' wishes. Families may violate terms of service agreements and battle with Internet service providers to access digital property that the deceased never wanted others to access. Discussing the Atkins family, journalist Geoffrey A. Fowler wrote, “[T]aking hold of Alison Atkins's digital afterlife forced her family to tread a line between celebrating her, and invading her privacy. In the process, her family discovered some dark journals Alison clearly meant to conceal. ‘She had passwords for a reason.”’
Handling digital assets after death presents numerous practical, legal, and moral problems. Accounting for all of one's assets and rounding up the requisite passwords comprise the first step to managing a digital estate. Professors Gerry W. Beyer and Naomi Cahn suggest drafting a separate document to supplement a will with log-in information to protect the testator's privacy because probated wills become public record. Beyer and Cahn suggest designating how each asset should be handled, such as which assets should be deleted and which ones should be kept and by whom. This approach is helpful in accounting for all of one's property, but it does not fully address how a family member or personal representative of an estate can implement these wishes legally.
This Note will explore the world of digital assets and how legislation can ensure the proper disposition of decedents' online selves. Part I explores the different kinds of digital assets and how courts deal with these assets in multiple types of litigation. Part II discusses the legislative solutions currently in place and under consideration for handling digital assets at death. Part III analyzes the Proposed Uniform Fiduciary Access to Digital Assets Act and discusses its innovations and shortfalls. Part IV examines what types of control fiduciaries should be allowed to exercise over digital assets. Finally, this Note will conclude with recommendations on how to best improve the Uniform Act.
Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) and Amy Ziettlow (Institute for American Values) recently published an article entitled, Digital Planning, 28 Prob. & Prop. 23 (May/June 2014). Provided below is the introduction:
In 2013, U.S. Trust commissioned a survey of over 700 high net worth individuals. Although three-quarters had a will, almost the same number did not have a comprehensive estate plan, and more than half had made no plans for their digital lives. 2013 U.S. Trust Insights on Wealth and Worth: Key Findings, www.ustrust.com/publish/content/application/pdf/GWMOL/UST-Key-Findings-Report-Insights-on-Wealth-and-Worth-2013.pdf. Yet high net worth individuals are the group most likely to use the Internet. Trend Data (Adults), Pew Internet, www.pewinternet.org/Static-Pages/Trend-Data-(Adults)/Whos-On-line.aspx. As we place increasing amounts of our lives on-line—from paperless banking statements to photos to medical records to customer databases—planning for our digital lives becomes correspondingly important. Moreover, some forms of digital property have economic value; consider the virtual sword for the on-line game that sold for $16,000 or the domain names that sell for millions of dollars. Or consider the fees that would accrue if your clients did not pay credit card bills accessible only on-line while they were incapacitated. Digital property (by which we mean Internet accounts and data stored on-line) also has personal, emotional, and social value: an on-line photo album can store years of treasured memories, a Facebook page can record an individual’s significant events and personal thoughts, and a computer may store the great American novel.
In this article, the authors discuss recent developments that affect how estate planners can advise their clients on the disposition of digital property, and how individuals, regardless of their net worth, can approach management of their digital assets. The authors first look at the risks of not managing assets, and then turn to (1) the Uniform Law Commission’s process of developing model legislation, (2) the need for digital estate planning to consider financial assets as well as issues relating to social and emotional issues, and (3) the benefits and drawbacks of the increasing number of companies offering planning programs.
Wednesday, April 30, 2014
My Health Care Wishes is a new app developed by the ABA’s Commission on Law and Aging that allows you to store your advance directives on your smartphone. In an effort to make advance directives more easily accessible in the event of an emergency, this app lets you present advance directives, health information, and contacts via email or Bluetooth. The digitally transmitted documents have the same legal authority as a signed and witnessed paper document.
The free version of this app lets you store one person’s information while the $3.99 Pro version offers unlimited storage for your family members. Other digital ways to store advance directives include DocuBank and MyDirectives.
See Paula Span, The Documents You Need, When You Need Them, The New York Times, Apr. 24, 2014.
Special thanks to Jerry Cooper for bringing this article to my attention.
Marianne Theresa Johnson-Reddick passed away at age 78 in Reno, Nevada. Her obituary appeared in the Reno Gazette-Journal on September 10, but it was not the typical fond remembrance.
Her daughter, Katherine Reddick, described a childhood of abuse and neglect experienced by her and her siblings. They were often in and out of foster homes with their mother allegedly running an escort service. After the obit went viral, Reddick’s brother said its purpose was “to bring awareness to child abuse . . . shame child abuse overall.”
Here is the full text.
See Audra Schroeder, Daughter’s Brutally Honest Obit for Her Mom Goes Viral, The Daily Dot, Sept. 13, 2013.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.
Friday, April 25, 2014
It is embarrassing, but it has probably happened to you. Have you ever accidently hit "send" on an email only to realize it was sent to the wrong person or you "reply all" when you meant to make your response private? Wish you hadn't?
Now, using a new free service developed by two Harvard students called Pluto Mail you can unsend an email after it has been sent. The email is retracted with two simple steps. The recipient then receives an email and subject line stating, "This message has expired." Pluto Mail allows users to edit emails after they have been sent so long as they have not been opened. The service also works with your current email client and email address with a set up similar to Outlook. However, there are still some creative ways to access the expired information. Currently, there is a waitlist for this service but you can sign up on the site's website.
See Robert Ambrogi, Unsend Email? Two Harvard Students Have a Way, Law Sites, Apr. 24, 2014.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Thursday, April 24, 2014
Join nationally known leaders Craig C. Reaves, Robert B. Fleming, and Mary Alice Jackson in this timely and important webinar as they address challenging SNT administrative issues faced by trustees, attorneys, financial planners and money managers involved in Special Needs Trusts.
This webinar will offer practical information by leaders in the field of Special Needs Planning that can be immediately implemented in your practices:
- Identify best practices for SNT dministration. As a result of court cases over the years, we have seen processes, policies and procedures change. Understand the best way to handle administrative matters, so you don't end up as a party in the next case!
- Learn how to recognize, interpret and apply the four common trust distribution standards when making distribution decisions.
- The ACA in real time: what are the implications of the Affordable Care Act for beneficiaries who live in states which have adopted Medicaid expansion as opposed to those living in states which did not adopt expansion? What happens when your beneficiary moves to another state? A step-by-step analysis will be provided for Trustees to use when considering coverage under Medicaid or the ACA.
Thursday, April 3, 2014
With the advent of technology permeating society, it becomes important to plan for your “digital death.” Many of us will leave behind email accounts, Facebook profiles, blogs, online businesses and more. Thus, if we do not properly prepare, our loved ones could lose these parts of us as well. Below are 5 ways to help prepare:
- Document Digital Accounts. Try to log all the digital accounts you may have including email accounts, financial institutions and policies, online businesses, social media accounts, and sites where you have registered credit card information.
- Give Instructions How to Handle the Account. Upon death, allocate which accounts should be deleted. Elect someone to retrieve other accounts, noting your username and password.
- Understand Your Account’s Terms of Service. Yahoo’s terms of service do not allow your account to be turned over to anyone else and are subject to permanent deletion. However, Google offers an Inactive Account Manager that allows you to dictate how your possessions in the site should be handled. Decide what settings work best for you.
- Determine Where to Save Your Information. Find a secure location so that a loved one can easily access your information in the event of your death.
- Obtain Legal Advice and Inform Family Where Information is Saved. Get legal advice to verify you have complied with state laws. Make sure to tell a loved one where this information is stored so they have a plan in place as well.
See Laura Shin, The New Financial Task We All Need to Tackle ASAP, Forbes, March 31, 2014.
Wednesday, April 2, 2014
Websites geared towards helping people with end-of-life planning and document storage are on the rise. Here’s a look at three of the main ones:
- Everplans: After taking a short assessment, this site creates a to-do checklist and tells you how to prioritize. Once you’re done with the checklist, your account serves as a repository for legal documents and other important information. Specific “deputies” you assign can then find everything neatly in one place.
- Principled Heart: This site focuses on providing a safe place for passwords or instructions on how to find passwords. There are sections for instructions on caring for pets, last letters of instruction, contact lists, and places to upload up to 60 documents.
- Aftersteps: This site begins by asking you to name three people to be notified after your death. These “verifiers” will then receive a list of people to contact as well as access to stored information. You can also store photos, passwords, instructions for digital accounts, and wishes for your funeral arrangement.
See Tara Siegel Bernard, Navigating the Logistics of Death Ahead of Time, The New York Times, March 28, 2014.
Special thanks to Matthew Bogin and Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Monday, March 31, 2014
iEulogy is a unique cloud-based online storage service that allows members to store messages and important documents to be accessed by family and friends in the event of their passing.
The goal of iEulogy is to relieve the pain of unanswered questions such as “What did he want his funeral to look like?” or “Did she say everything she wanted to say?” by allowing members to post important messages, videos, and legal documents.
Wednesday, March 26, 2014
The IRS recently issued its first guidance regarding the topic of bitcoins.
In Notice 2014-21, the IRS stated it will treat virtual currencies, such as bitcoins, as property for federal tax purposes. So when computing gross income, a taxpayer who has received bitcoins as payment for goods or services must include the fair market value of the bitcoins (measured in U.S. dollars) as of the date the bitcoins were received.
See Alistair M. Nevius, J.D., New Guidance Clarifies Tax Treatment of Bitcoin and Other Virtual Currencies, Journal of Accountancy, March 25, 2014.
Special thanks to Eugenia Charles-Newton and Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.