Wills, Trusts & Estates Prof Blog

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

Sunday, August 18, 2019

Funerals are now Being Livestreamed

LivestreamThe a person's death can often happen so suddenly, family and friends from different places cannot manage to be at their loved one's funeral. Natalie Levy's mother died tragically from suicide earlier this year, and following Jewish tradition, they had the funeral as soon as possible. But that made it nearly impossible for many to join in on mourning for her mother.

Fortunately, the chapel featured a new amenity: livestreaming the service so others could watch, and they even uploaded a recording of the funeral onto the online obituary. Levy some extended family members her mother had reconnected with late in life were extremely grateful they could participate remotely, as were the half-dozen or so other friends and family members she recalls tuning in live. But it was not only a saving grace for those that could not attend; the recording could be watched by her and her sister to remember all the sweet stories the well-wishers told them about their mother.

Bryant Hightower, president-elect of the National Funeral Directors Association, says that livestreaming funeral services has been around for more than a decade but has just now become more mainstream. The funeral industry is often hesitant to any change, but Hightower says that now approximately 20% of funeral homes now offer the service, much to the delight of clients that are becoming more integrated in the technological lifestyles. Gary Richards, founder of OneRoom, a company that offers livestreaming services to funeral directors in several countries, says that many clients are recent immigrants from countries such as India, Philippines, and Vietnam who want to have long distance family members feel connected to the service.

See Paris Martineau, Now Even Funerals are Being Livestreamed - and Families are Grateful, Wired, July 30, 2019.

Special thanks to Jim Gust (Senior Editor, Merrill Anderson Company) for bringing this article to my attention.

August 18, 2019 in Current Affairs, Current Events, Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0)

Thursday, August 15, 2019

What Should I Do With My Dead Dog?

AquamationSisters Joslin Roth and Darci Bernard realized years ago that there was a need in Seattle for pet death care. Ms. Roth says that "you could do stand-up paddleboard yoga with your dog but couldn’t visit a death care provider." So in December 2016 the pair opened Resting Waters in West Seattle where they offer their clients aquamation, a water-based alternative to flame-based cremation.

Jerry Shevick, a former television executive, knew that the pet industry as a whole increases every year. Understanding this fact as well as the knowledge that owners want to care for their furry loved ones as they would a child or family member, he started Peaceful Pets Aquamation in Newbury Park, California, in 2013. He offers the service because of the decreased carbon footprint, stating that aquamation “really uses the same components that natural decomposition uses. With people paying attention to climate change, it’s becoming more interesting to people as well.”

The pet death industry is not yet as regulated as human funeral services. Occasionally, though, someone seeking to open an aquamation facility will have difficulty convincing wastewater-treatment officials that the process is sufficiently pure. Nearly 20 states that have recently legalized aquamation as a means of dealing with human corpses including Washington and California.

See Mike Seely, What Should I Do With My Dead Dog?, New York Times, August 12, 2019.

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

August 15, 2019 in Current Affairs, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Article on Digital Remains: The Users’ Perspectives

DigitalTal Morse & Michael Birnhack recently published an Article entitled, Digital Remains: The Users’ Perspectives, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

As our lives go digital, so will, inevitably, our death. Emails we send, photographs we post, and thoughts we share are all stored digitally. These are users’ digital remains that reflect their digital personalities and at the same time, make up the memories for friends and family. After death, the social norms and legal rules regarding access to digital remains are no longer clear. A conflict might arise between the privacy expectations of the user, and his or her family and friends’ wish to utilise the digital remains for mourning and commemoration. Some service providers and platforms have recently addressed the quandaries of digital remains, and legal systems slowly begin to follow. As these technological and legal responses emerge, we should not neglect the users themselves. What do users want? How do users wish to manage access to their digital remains? Based on a national survey of Israeli population, this chapter reveals the multiplicity of users’ perspectives, perceptions and practices regarding access to digital remains – their own and others. The chapter points to the emergence of new social perspectives on posthumous privacy and commemoration in the contemporary digital age, and comments on their relevance to policymaking.

August 15, 2019 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Monday, August 12, 2019

The New Art of Dying

TombstoneThe funeral industry is booming with new innovations and is now worth more than $17 billion. Some of these innovations are expanding on traditional methods of burial, while other business are finding new creative ways to carry out their client's dying wishes.

Obituaries are more readily available online rather than print, and the inventive new funeral methods are just as modern. These involve:

  • Orbit in outer space
  • Transformation into a diamond
  • Green burial
  • Celebration of life instead of a somber funeral
  • Digital tombstones
  • Smart library
  • Pet burials that join human's and animal's remains
  • Memorial reefs
  • Living wake so you can attend your own funeral
  • Live-streamed funerals

These different practices show that as our society evolves, people want to extend their passions in life into their legacies.

See Jessie Li, The New Art of Dying, Axios, August 10, 2019.

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

August 12, 2019 in Current Events, Death Event Planning, Estate Administration, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Friday, August 9, 2019

ACTEC 2019 Annual Meeting Musings

BessemerSteve R. Akers published a summary of the ACTEC 2019 Annual Meeting. A synopsis of his musings is provided below.

Various seminars at the ACTEC 2019 Annual Meeting are summarized. Topics include: elder financial abuse, artificial intelligence, cryptocurrency, basis adjustment planning, family conflict, modification of trusts, settlor intent, directed trusts, Uniform Trust Act, Uniform Fiduciary Income and Principal Act, ethics of negotiations, and hot topics.


August 9, 2019 in Articles, Conferences & CLE, Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Science, Technology, Trusts, Wills | Permalink | Comments (0)

Monday, July 22, 2019

Note on Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes

SurrogacyChelsea E. Caldwell recently published a Note entitled, Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes, 49 U. Mem. L. Rev. 848-882 (2019). Provided below is an introduction to the Note.

R.H. and her husband M.H., Italian citizens, have tried for eight years to conceive a child - utilizing every avenue of fertility services available to them in Italy, to no avail. Her doctor advises R.H. that it is unlikely she will ever be able to carry a child of her own and that adoption is the only option in Italy for the couple to expand their family. Not ready to give up yet, R.H. contacts a surrogacy agency located in the United States. After timely consultations, the couple is matched with surrogate mother C.E., who lives in Chicago. R.H. and M.H. fly to Chicago several times to complete a cycle of In Vitro Fertilization ("IVF"), creating several viable embryos. To the couples' long-awaited success, surrogate mother C.E. becomes pregnant after the embryo transfer. Nine months go by swiftly and R.H. and M.H. board a flight to Chicago for the birth of their son, S. Unfortunately, their plane crashes, leaving no survivors. The couple indicated in their International Surrogacy Agreement ("ISA") with surrogate mother C.E. that R.H.'s sister in Italy would be the appointed guardian should something happen to them. However, that agreement was drafted and completed in the United States. Italy does not recognize such contracts and, in fact, forbids them. What happens to stateless baby S?

International parents, like R.H. and M.H., come to the United States from foreign destinations where surrogacy is illegal or against public policy in their country of origin; they contract with surrogates in the United States to carry out their pregnancies, fulfilling their dreams of parentage to have a child of their own. The surrogacy agreement, however, is often the easiest part in this situation - international intended parent(s) ("international intended parents") must circumvent their countries' laws not only to carry out the surrogacy agreement but also to successfully establish legal parentage and desired citizenship of the child in their country of origin once the child is born.

Within this delicate situation comes the need for intended parents to address estate planning, specifically considering the possibility of a tragedy befalling them while their child is in utero with a surrogate in the United States. Currently, there is a disconnect in the estate planning realm, even domestically between American intended parents and American surrogates; most patients rely on inadequate consent forms provided by fertility clinics. The legal issues are more complex when considering cross-border surrogacy arrangements and international intended parents who face restrictive and conflicting laws regarding surrogacy.

With rapid medical advances in the Assisted Reproductive Technology ("ART") field and progressive hesitancy in foreign countries toward surrogacy, complexities resulting from prevalent cross-border surrogacy arrangements are sure to only increase, which is this Note's broad focus. Part II of this Note provides a brief introduction to international surrogacy: tracing the history of surrogacy's prevalence beginning in the United States to its expansion across borders and how estate planning is significant in this area. Part III delves further into surrogacy in an international context, offering a comparative view of surrogacy laws in different countries and some resulting, notable but common examples of challenges international intended parents face to establish parentage and citizenship in their country of origin. Thereafter, Part IV circles back to the main issue of estate planning for guardianship purposes and analyzes possible protections and future outlooks on existing international conventions: the Washington Convention and the Hague Convention. Finally, Part V presents a proposed standard of international comity, and Part VI concludes. Taken together, this Note hopes to bring greater clarity to the doctrinal tensions one finds in the contemporary law of international surrogacy.

July 22, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Science, Technology, Travel | Permalink | Comments (0)

Friday, July 19, 2019

Article on Towards a new California Revised Uniform Fiduciary Access to Digital Assets Act

Michael T. Yu recently published an Article entitled, Towards a new California Revised Uniform Fiduciary Access to Digital Assets Act, 39 Loy. L.A. Ent. L. Rev. 116-143 (2019). Provided below is an abstract of the Article.

California enacted the Revised Uniform Fiduciary Access to Digital Assets Act (the California RUFADAA) to govern the disclosure (or non-disclosure) of digital assets when a California resident dies. Digital assets include not just emails and social media accounts but may also include online files and assets, digital currencies, domain names, and blogs. The California RUFADAA ostensibly governs the disclosure of digital assets only when a California resident dies, and it, therefore, does not govern the scenario when a California resident becomes incapacitated and can no longer handle his or her digital assets. This scenario is likely to become more common because Californians (like most Americans) increasingly are living longer, owning more digital assets, and holding their assets (non-digital and digital) in revocable living trusts. Forty-five other states have enacted laws governing the digital assets of both deceased individuals and individuals who are alive but incapacitated. Currently, California ostensibly has no guidance for a fiduciary currently administering the digital assets of a Californian who is incapacitated. The California RUFADAA, therefore, should be amended to apply to individuals who are still living but who become incapacitated. If the California RUFADAA is not so amended, this article proposes (1) the California RUFADAA be amended to clarify whether it applies to California users who have successfully used an online tool to authorize a "designated recipient" to administer the user's digital asset upon the user's incapacity and whose "designated recipient" is currently acting and administering the user's digital asset, and (2) the California RUFADAA be amended to delete apparently superfluous references to an individual who has, under a power of attorney, authorized an agent to handle digital assets when the individual becomes incapacitated.

July 19, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0)

Thursday, July 18, 2019

Uniform Law Commission Approves Uniform Electronic Wills Act

ULCEarlier this week, the ULC approved the Uniform Electronic Wills Act. Here is an excerpt from the ULC's announcement:

The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect.  Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form.  Since 2000 the Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format.  But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states.  Under the new Electronic Wills Act, the testator's electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file.  States will have the option to include language that allows remote witnessing.  The act will also address recognition of electronic wills executed under the law of another state.  For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion.

See Katie Robinson, ULC Approves Five New Acts, Uniformlaw.org (July 17, 2019).

July 18, 2019 in New Legislation, Technology, Wills | Permalink | Comments (0)

Thursday, July 4, 2019

Two Families Suing After Disfigured Patient is Mis-ID'd, Taken off Life Support

FingerprintA man found underneath a car in Chicago on April 29 and taken to Mercy Hospital, severally beaten to the point of facial disfigurement, naked, and unconscious, was listed as John Doe until he could be identified through mugshots. He was believed to be Alfonso Bennett, and his family was told their loved one was in the intensive care unit. The family eventually took him off life support after he was in the hospital for six weeks and his condition failed to improve and he passed away shortly afterwards.

Unfortunately, the man was not Alfonso Bennett, but rather 66-year-old Elisha Brittman, and his family said he had been missing for weeks. Mioshi Brittman, his niece, claimed that she searched for her uncle "every day" and was dismissed by the police when she tried to file a missing person's report. Rosie Brooks, Alfonso Bennett's sister, said that she repeatedly told hospital staff that she could not recognize the man on the bed as her brother, but were dismissed as being in denial.

The Bennett and the Brittman families accuse the Chicago Police Department and Mercy Hospital of willful misconduct and negligence for using mugshots, and not fingerprints, to identify a man whose face was severely disfigured. The police say that identification through fingerprints are used as a last resort. Weeks after the Bennett family mourned the death of their loved one, Alfonso showed up to a family party after failing to let anyone know he took a vacation. The body at the morgue was then fingerprinted and correctly identified as Brittman. Each family are seeking $50,000 for the emotional trauma of the ordeal and the wrongful death of Elisha Brittman.

See Danielle Wallace, Two Families Suing After Disfigured Patient is Mis-ID'd, Taken off Life Support, Fox News, July 4, 2019.

July 4, 2019 in Current Events, Estate Planning - Generally, New Cases, Technology | Permalink | Comments (0)

Thursday, May 30, 2019

Is Something Missing from Your Estate Plan? How to Keep 'Digital Assets' in the Family

TechIn this modern day, people can often be confused on what digital assets are. Not all of them fit into a neat little box, because some may have merely sentimental value while others may indeed have real financial value. Those with financial value can include Bitcoin, blogs that earn income, reward points for credit cards or airlines, etc. Digital assets that only have sentimental value include social media accounts (except for maybe the Kardashians), email accounts, and digital photographs.

To make sure that the important files or accounts are passed on to your heirs, you need to make an inventory. Then consider using a "password manager" on your computer or cell phone for these accounts. For Bitcoin and other cryptocurrencies, there are several different cloud based wallets to store them.

Now, spouses and heirs cannot simply log on to your social media accounts if they know the login and password; federal privacy laws prohibit this. But Google and Facebook have settings where you can establish and name a person that will take over and oversee your account after your passing. As technology continues to find its way into different aspects of our lives, incorporating digital assets into your estate plan has become yet another way to leave behind a legacy that reflects a life well lived.

See Kevin Duncan, Is Something Missing from Your Estate Plan? How to Keep 'Digital Assets' in the Family, Fiduciary Trust, May 30, 2019.

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

For more information, see here.

May 30, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)