Friday, February 15, 2019
Many states have complex and confusing laws that deal with the administration and distribution of a decedent's digital assets. In Estate of Swezey out of New York, Apple was considered about the legality of handing over access to photos on the deceased user's iCloud to the executor. The Court concluded that Apple was required to disclose those photographs.
The Uniform Fiduciary Access to Digital Assets Act of 2014 treated digital assets that same as traditional assets. The account owners could decide what would happen to them and the fiduciaries could have control of them when the owner died or became incapacitated. If the executor or other fiduciary did not have the password to an account, they were to ask the company for access and the company would have to comply. This faced strong opposition from technological companies and privacy advocacy groups claiming that this contradicted federal and state privacy laws.
In 2015, the Uniform Law Commission revised that act to correlate with the issues raised by the companies and advocacy groups, including not allowing access to all of the different aspects of certain accounts. Now, executors will not have authority over the content of electronic communications, unless expressly disclosed, but they can get access to other types of digital assets, such as photographs or an eBay or PayPal account. Many companies now have "online tools" that allow the user to designate who the company is to release the account to when the user dies.
Fiduciaries may request court orders if necessary. In general, access is only granted to assets that are “reasonably necessary” for wrapping up the estate.
See Stacie J. Rottenstreich and Karin Barkhorn, What Happens to My Digital Assets on Death or Incapacity?, Lexology, Februaru 6, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Thursday, February 14, 2019
Article on Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology
Alexandra M. Jones recently published a Comment entitled, Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 161 (2018). Provided below is an abstract of the Comment.
Fresh out of law school, many young lawyers are eager to start their legal careers and just right into the courtroom. While they still need some practical training first, many young lawyers accept jobs that deal solely with discovery or intake until they can slowly make their way up the legal food chain. With the advancement of technology, programs like expert systems and artificial technology are taking over some of these first-year associate jobs because they are less expensive and more efficient. As a result, law firms are not hiring as many recent graduates. Eventually, technical jobs could replace the classical notion of attorneys. However, the growing concern that technology is taking over jobs in the legal field is not the only problem caused by artificial intelligence. Issues arise with how much impact technology has in transactional fields, such as estate planning, and the future role that artificial intelligence will play. An even greater issue arises with who is liable for artificial intelligence mistakes when there is very little in terms of legislation.
Tech industry experts are in stark disagreement about the means of regulating artificial intelligence. Stephen Hawking and Elon Musk have warned the world of dangers of advancing artificial intelligence and that governments need to start creating laws and regulations. Experts such as Bill Gates and Mark Zuckerberg believe that creating new regulation is not realistic because the technology has not fully developed. Some critics argue that researchers are already regulated enough, and adding more regulation will stifle innovation. This comment focuses the issue on a much smaller scale by suggesting that lawyers, law firms, and other entities that utilize artificial intelligence, or its branch of expert systems, in their estate planning practice are consistent with ethical rules of conduct for the system. Additionally, this comment will expand upon the meaning of the unauthorized practice of law as it relates to artificial intelligence.
This comment proceeds in five parts. Part I introduces the concept of artificial intelligence through practical and theoretical examples and definitions. Part II discusses the impact that artificial intelligence has on expansion. Part III considers the effect artificial intelligence have on estate planning laws. Part IV discusses the parties liable for artificial intelligence. Part V suggests methods of ensuring compliance with ethical standards to estate planning practitioners as technology becomes more absorbed in transactional fields.
Wednesday, February 13, 2019
The parents of Molly Russell have been unsuccessful in their attempts to access her social media data, which they believe will help them to understand her suicide.
The 14-year-old's father has claimed that her use of Instagram was a factor in her taking her own life.
Instagram has told the BBC it is constantly reviewing its polices regarding images about depression and suicide, and that experts have advised the company that allowing those topics could help people feel supported.
See Why Can't I See My Daughter's Data?, BBC, February 6, 2019.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.
Sunday, February 10, 2019
The National Business Institute is holding an auto webinar entitled Digital Assets in Estate Administration, on Monday, March 25, 2019, from 12:00 PM - 3:15 PM Central. Provided below is a description of the event.
Processes, Procedures and Legal Pitfalls
As our online lives continue expanding exponentially, your clients accumulate more and more digital assets. Some of these assets add significant financial value to the estate, some have purely sentimental value to the heirs, but all can easily slip through the cracks without the proper knowledge. Make sure the digital life your client spent so many years compiling is left to loved ones instead of being lost in cyberspace forever - register today!
Learn how to correctly incorporate digital assets into your client's estate plan, such as electronic tax returns, E-bank accounts and PayPal accounts.
Explore the ins and outs of the Terms of Service agreements you'll need to understand to gain access to the clients' data.
Understand which digital assets are often lost at death - online bank accounts, emails, domain names, etc.
Get practical tips for retrieving online information if no provisions have been made to transfer access.
Who Should Attend
This legal program is designed for attorneys looking to increase their knowledge of probate and estate planning. It will also benefit accountants and paralegals.
Online Assets and Information at Issue
Post-Mortem Searches and Account Access
Digital Assets with Monetary Value in Estate Administration
Business Digital Assets in Estate Administration
Lessons From States Adopting Uniform Fiduciary Access to Digital Assets Act
Thursday, February 7, 2019
Lightning-paced advancements in technology are responsible for many wonderful accomplishments that span across most industries and have contributed to making day-to-day life and work easier and more streamlined. Despite such modern-day developments, technology can still cause major problems, and unexpected issues can occur in ways that were unfathomable less than 20 years ago. The breadth of general knowledge, regardless of specialty, that attorneys must possess to represent their clients is constantly expanding. One key area is how cybersecurity affects their practice and their client's information. Attorneys need to be prepared for phone calls from their clients on what to do if they are victims of a cybersecurity attack and how to take preventive measures to minimize their risk of being attacked. Attorneys also should be able to address questions from clients on what measures their firms are taking to ensure protection of their clients' information. Trusts and estates attorneys need to be especially proactive in addressing cybersecurity measures with their clients, in both estate planning and estate administration. Identity theft is one key issue, and more and more people have digitized assets in need of tracking and protection from nefarious criminals.
See Ross E. Bruch, Probate Technology, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.
Monday, February 4, 2019
Gerald Cotten, the 30-year-old founder of a Canadian cryptocurrency exchange QuadrigaCX passed away in December from complications of Crohn's disease. It is just coming to light, however, that the executive may have been the only person with knowledge of the passwords needed to access $190 million of the company's funds.
Jennifer Robertson, Cotten's wife, said that he had the “sole responsibility for handling the funds and coins,” locked with a digital key in "cold storage." She is in possession of her late husband's laptop, but even a security expert has been unable to get past the device’s encryption.
Both the company and Robertson's widow has applied for creditor protection with the Novia Scotia Supreme Court. “For the past weeks, we have worked extensively to address our liquidity issues, which include attempting to locate and secure our very significant cryptocurrency reserves held in cold wallets, and that are required to satisfy customer cryptocurrency balances on deposit, as well as sourcing a financial institution to accept the bank drafts that are to be transferred to us,” the company said in its statement. “Unfortunately, these efforts have not been successful.”
See James Rogers, $190 Million Gone Forever? Crypto Boss Dies With Passwords Needed to Unlock Customer Accounts, Fox News, February 4, 2019; see also Quadriga: Cryptocurrency Exchange Founder's Death Locks $140m, BBC, February 4, 2019.
Thursday, January 31, 2019
The integration of technology into the practice of law has been a double-edged sword for most practitioners. On one hand, technology has made some things easier and faster. On the other hand, it can generate a lot of frustration, delay, and expense. When tech began impacting our profession in the early 1990s, the conventional wisdom was for lawyers to focus on doing what only lawyers could do and let the support staff deal with the new technology tools. Of course, it has now become nearly impossible for a lawyer to do his or her job without using technology directly. To make matters worse, the technology tools change at a dizzying pace, and there is often no one around to ask for help. As a result of all of this, lawyers often feel behind the curve and wonder where they should focus their efforts to improve efficiency and profitability. Here are some ideas.
See Barron K. Henley, Technology Tools for Real Property and Trusts and Estates Lawyers, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.
Thursday, January 24, 2019
Gerry W. Beyer recently published an Article entitled, Cryptocurrency -- What Estate Planners Need to Know, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
Less than a decade ago, if an estate planner asked clients whether they owned any cryptocurrency, the most likely response would be, “You mean, money to buy a crypt?” Now, due to the widespread media coverage of Bitcoin, the most famous of all cryptocurrencies, most clients will have some basic idea about what the estate planner is inquiring.
The use of cryptocurrency is increasing at a rapid pace. As of December 31, 2018, there were approximately 17.5 million Bitcoins in circulation worth over $67 billion. Although only a few cryptocurrencies in addition to Bitcoin are well-known outside the cryptocurrency community (e.g., XRP, Ethereum, EOS, and Stellar), over 2,000 different virtual currencies are actively traded. These other cryptocurrencies are sometimes referred to as altcoins, meaning that they are an alternative to Bitcoin.
A recent survey revealed that 25% of individuals between the ages of 24 and 38 who either had $50,000 of investable assets or earned $100,000 or more per year own cryptocurrency. A growing number of mainstream businesses already accept Bitcoin such as Microsoft, Subway, KFC Canada, many Etsy vendors, Whole Foods, Dish Network, and Expedia. In addition, some law firms are already accepting Bitcoin in payment of legal services.
This article starts by building a basic foundation about virtual currencies and how they operate. The article then reviews the estate planning and administration issues that arise with owning cryptocurrency and concludes with recommendations for how to address virtual currency in your practice.
Tuesday, January 22, 2019
Companies struggling to conquer Alzheimer's have been hindered by the side effects to patients even when there have been promising results. A start-up out of Dublin may be on the right path though they are hesitant to claim that they have solved the mystery of the disease.
United Neuroscience Inc. reports results from a small clinical, Phase II trial that show a 96% response from patients given the vaccine and without any serious side effects. The trial consisted of 42 individuals with mild cognitive impairments and believed to by in the early stages of Alzheimer's. The patients that were administered the vaccine currently called UB-311 by the company demonstrated improved brain function and showed a reduction in the protein plaque gumming up their neurons. Chief Executive Officer Mei Mei Hu says that there were improvements across the board compared to the placebo.
No one quite knows what causes Alzheimer's nor what exacerbates the disease, but the possible suspects are a couple families of proteins, amyloid and tau, that build up and then clump together and attack the brain. United’s vaccine stimulates the patient’s own immune system to attack amyloid, which many assume is the primary perpetrator. The vaccine's goal is to lessen and slow the clumping and possibly reverse some damage and restore brain function.
The small number of participating patients may not allow United to draw any major statistical conclusions, the company is encourage enough to move forward with development of the vaccine, possibly with a larger partner, according to Hu.
See Ashlee Vance, United Neuroscience’s Alzheimer Vaccine Just Might Work, Bloomberg, January 16, 2019.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Monday, January 21, 2019
Clint A. Guillebeau published a Note entitled, Disposition of Digital Assets in Georgia, 25 J. Intell. Prop. L. 29-40 (2017). Provided below is an introduction of the Note.
Estate planning law tells us that following an individual’s death, the disposition of that individual’s tangible property, such as a car or a house, whether he died intestate or with a thorough estate plan, will pass on to his or her heirs. Probate and estate issues are governed by state law and Georgia’s laws are codified in the Georgia Code in Section 53 where the disposition of tangible property can be found. What is lacking in Georgia’s wills, trust, and estate laws is what happens to other forms of property such as digital assets. With the ever-increasing reliance and usage of the internet this issue needs to be addressed. Currently, there is no federal law with regard to the disposition of digital assets, and state law that has thus far been adopted is scarce. However, in 2015 the Uniform Law Commission (ULC) drafted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) with a twofold purpose expressed in a prefatory note.
First, it gives fiduciaries the legal authority to manage digital assets and electronic communications in the same way they manage tangible assets and financial accounts, to the extent possible. Second, it gives custodians of digital assets and electronic communications legal authority to deal with fiduciaries of their users, while respecting the user’s reasonable expectation of privacy for personal communications.
This Note will support the position that states, and Georgia in particular, should adopt a version of RUFADAA but should first strongly consider and redraft some of the language. This Note will advocate in part on the potential adoption of federal law requiring users to sign an online tool before gaining access to a website. Further, this Note proposes a reorganization of the three tier distribution system of digital assets found in the Revised Uniform Fiduciary Access to Digital Assets Act which would allow estate planning documents, if drafted later in time, to trump the online tools articulated designations.
Part II of this Note will provide the background needed for a thorough understanding of the problem. This section will provide the definition and examples of digital assets, provide the history of how digital assets have been handled over the years, as well as provide an understanding of current federal and state law regarding this issue. This section will also analyze how Georgia in particular has dealt with digital assets. Part III will outline important aspects of RUFADAA and analyze the benefits as well as potential consequences of a strict adoption of RUFADAA. Part IV will advocate for Georgia to adopt RUFADAA but with a few changes to better handle possible issues. Part V will be a conclusion summarizing this Note.