Wills, Trusts & Estates Prof Blog

"Is there virtual life after death?" -- Hess Memorial Lecture

The 2022 Hess Memorial Lecture entitled Is There Virtual Life After Death? Dealing with Cryptocurrency, Non-Fungible Tokens, Electronic Communications, and the Metaverse in the Context of Estate Planning is now available for on-line viewing.

Here is a description of the lecture:

Modern estate planning involves much more than planning for the distribution of a client’s home, corporate securities, money, and family heirlooms. New types of property without tangible form are evolving rapidly, from ubiquitous electronic communications such as e-mail and text messages, to the generally understood realm of cryptocurrency, to the growing use of ethereal non-fungible tokens, and to the fringes of purchasing “land” in the Metaverse, or the non-physical digital world. Without an understanding of these assets, attorneys will lack the sophistication necessary to provide sage advice to their estate planning clients.

Professor Beyer describes the structure of cyber assets and examine the planning techniques currently available, starting with basic steps that provide substantial predictability. He discusses the uncertainty in outcomes that may arise due to the extreme value volatility of many of these virtual assets, and the prudent methods that planners should consider when these assets form part of an estate or trust to reduce the potential of fiduciary liability. His presentation concludes with a look towards what the future may hold for cyber property and its estate planning interface.

Since the late 1960s, the Mortimer H. Hess Memorial Lecture has been sponsored annually by the Estate & Gift Taxation Committee of the New York City Bar.  The lecture series, originally created by the family of the late tax lawyer Mortimer H. Hess, is made possible through a generous grant from Mr. Hess’s family and former partners.

Article: Sucking Success Out of Minor Social Media Influencers: A Call for Testamentary Capacity Rights in Texas

Symphony Munoz, a law student at Texas Tech School of Law, recently published an article entitled, Sucking Success Out of Minor Social Media Influencers: A Call for Testamentary Capacity Rights in Texas, Estate Planning Journal, Vol. 14. Issue 1, 2022.

Provided below is the abstract to the Article: 

The inability for these minors to create testamentary documents is unfair and inconsistent with other laws that do not prohibit minors from owning property or contracting with these digital asset domains. Furthermore, some states offer minors the limited ability to make important decisions about receiving medical treatment, entering the field of employment, having sex, or getting married. Therefore, the state of Texas should at least allow CVMSMIs the ability to decide where they want their digital assets to go should they die or become incapacitated, especially because digital asset law makes it difficult for heirs to exercise access or control over the accounts of the deceased. This Comment does not call for Texas to completely disregard the legal capacity age requirement. It does, however, call for Texas to rely on whether a qualifying minor has the requisite mental capacity to devise digital assets and the financial value to make it worthwhile, with the traditional safeguards that will continue to protect the interests of a minor (doctrines of undue influence, fraud, and requisite formalities) and the additional safeguards proposed by this Comment.

Article: Cross-Border Attestation and Interjurisdictional Wills

Richard F. Storrow recently published an article entitled, Cross-Border Attestation and Interjurisdictional Wills, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

After nearly two years of difficult effort to contain the coronavirus outbreak, remoteness is firmly embedded in the American psyche. Throughout the country, emergency orders permitting will execution and attestation to be conducted by simultaneous audio-visual transmission have allowed estate planning to proceed. There are currently bills in some state legislatures to make permanent the temporary emergency measures adopted during the pandemic. Remote execution and attestation may be here to stay, even in a world where electronic wills remain rare. This article addresses what is likely to become a more familiar manner of will execution in a post-pandemic world and will test the admissibility of interjurisdictional wills to probate against existing rules of probate jurisdiction, choice-of-law norms, case law, and the new directions in will execution forged during the coronavirus pandemic.

Article: Flesh of My Flesh but Not My Heir: Unintended Disinheritance

Laura Padilla recently published an article entitled, Flesh of My Flesh but Not My Heir: Unintended Disinheritance , Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

This article explores issues around property rights, biology and technology.

Podcast on Non-Fungible Tokens released by ACTEC Foundation

Here is a link to a podcast entitled An Update on NFTs, Non-Fungible Tokens which I prepared for the American College of Trust and Estate Counsel Foundation.

Non-Fungible Tokens: What Every Estate Planner Needs to Know

Here is the abstract of an article I recently posted on SSRN entitled Non-Fungible Tokens: What Every Estate Planner Needs to Know:

Your client may own non-fungible tokens (NFTs) and ask you for estate planning advice. Would you be caught off-guard and give your client the classic “deer in the headlights” look? Obviously, that would not be prudent. To make sure this doesn’t happen to you, this article uses a FAQ approach to provide you with the background and information you need so that you will understand NFTs and how to give your client sage advice on how to handle them during the client’s lifetime and upon death.

Indonesian Islamic body forbids crypto as currency

The Indonesian Ulema Council (MUI) "has ruled that using cryptocurrencies as a means of payment is unlawful in Islam, but trading of digital assets could be allowed. . ." 

Although Indonesia, the world's biggest Muslim majority country, has banned the use of crypto as currency, crypto can still be invested in and traded in the commodities and futures market.

According to the trade ministry, the total value of cryptocurrency in the trading commodity bourse has reached 370 trillion rupiah ($25.96 billion) this year to May. At the end of 2020, the total trading was valued at 65 trillion rupiah. Further, the number of traders rose from 4 million to 6.5 million. 

The MUI will continue to allow trading of cryptocurrencies that (1) meet Islamic rules, (2) have an underlying asset, and (3) carry clear benefits. 

Although the MUI's decree is mot legally binding, since it is not part of the government, the ruling may affect investment decisions made by some Muslims. 

See Indonesian Islamic body forbids crypto as currency, CNN Business, November 11, 2021. 

iOS 15.2 Beta 2 Lets Your Family Access Your Data If You Pass Away

When Apple first introduced iOS 15 in June, the company highlighted a new, extremely important and helpful feature. The new feature is termed the Digital Legacy feature and is designed to allow Apple users to set a person as their Legacy Contact, which gives that person access to your Apple ID account and personal information in the event of your death.

Although the feature was not quite ready when iOS 15 launched, the feature is available in the iOS 15.2 and iPadOS 15.2 betas that were released today. 

Below is information on the what, where, and how of the Legacy Contact feature: 

The Legacy Contact option can be accessed by opening up the Settings app, tap on your profile picture and then select "Password & Security." From there, choose "Legacy Contact" from the list and you can select a trusted person to access your account after you pass away.

The person will have access to your data, and the contact will need to provide an access key and a copy of a death certificate to use your ‌Apple ID‌ account. The feature is designed to give your loved ones access to your photos, videos, notes, documents, and other personal information.

See Juli Clover, iOS 15.2 Beta 2 Lets Your Family Access Your Data If You Pass Away, MacRumors, November 9, 2021. 

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

Surgeon transplants a pig's kidney into a brain-dead human in groundbreaking surgery

Robert Montgomery, a New York transplant surgeon, "conducted a successful surgery that transplanted a pig's kidney into a brain-dead human." 

US surgeons say that the successful transplant could ultimately be the key to solving donor organ shortages. The recipient of the kidney was brain-dead, and was on artificial life support "with no prospect of recovering." 

The kidney came from a pig that had been genetically modified to stop the organ being recognized by the body as "foreign" and being rejected. 

Although the work has not been peer-reviewed or published, there are plans to do so, and experts say it is the "most advanced experiment in the field so far." 

See Michelle Roberts, Surgeon transplants a pig's kidney into a brain-dead human in groundbreaking surgery, BBC, October 21, 2021. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

Cryptocurrency: rise of decentralised finance sparks ‘dirty money’ fears

Just a few days before the July 4 holiday, Denver entrepreneur Erik Voorhees declared that "the company he had founded seven years earlier to help people exchange cryptocurrencies without making their names available to the government or anyone else would disappear from the face of the Earth — even as its services remained available to those who wanted them." 

Voorhees's enterprise, known as ShapeShift, would become a "decentralized autonomous organization," or DAO overtime. Voorhees wrote on twitter: "ShapeShift's vision is the establishment of an immutable, borderless financial system. . .Let's be direct: money and finance shall not be operated by coercive government among free people. They shall — like language, mathematics, and love — emerge voluntarily and without central rule." 

US regulatory circles have honed in on Vorhees's declaration who long worried that the secrecy of the crypto trade "create opportunities to disguise the origin and ownership of funds." In crypto trade, the coins are controlled by the holder of a "private key" which allows for anonymity. 

This anonymity is a major focus of concern for US regulatory circles, and those anxieties have grown stronger with the growth of decentralized finance or DeFi. DeFi platforms "seek to replace financial intermediaries such as banks or brokers with software known as smart contracts. . . .that would automate market activity." 

Although US regulatory circles are concerned with the hazy legal status and lack of customer knowledge that comes along with DeFi platforms, Vorhees and his "crypto allies" never intended to know their customers and feel that DeFi innovations will "enable them to break free of such obligations." 

See Gary Silverman, Cryptocurrency: rise of decentralised finance sparks ‘dirty money’ fears, Financial Times, September 14, 2021. 

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.