Wills, Trusts & Estates Prof Blog

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

Friday, June 19, 2020

Article on Bringing the Dead Back to Life: Preparing the Estate for a Post-Mortem Acting Role

Ben Laney recently published an Article entitled, Bringing the Dead Back to Life: Preparing the Estate for a Post-Mortem Acting RoleWills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article: Unknown

Computer generated imagery (CGI) now has the ability to accurately recreate deceased actors and actresses for movie roles long after their death. This student comment examines how the right to publicity gives an actor the ability to protect their postmortem persona rights beyond their death using estate planning techniques.

June 19, 2020 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Monday, June 15, 2020

Best Practice Considerations for Virtual Execution of Estate Planning Documents

6a01bb07f6b79e970d01b7c7794534970bMarissa German and Barbara Kimmitt, attorneys for the Canadian legal practice of Bennett Jones LLP, recently wrote about the considerations that you should take when virtually executing estate planning documents. 

Due to the COVID-19 pandemic, a Ministerial Order (M.O.) was signed in Canada which modifies current legislation on a temporary basis to allow for virtual witnessing of Wills, Enduring Powers of Attorney and Personal Directives (Estate Planning Documents). The modification was made with the public interest in mind since some people cannot leave their homes due to health concerns. 

The M.O. specifies two requirements for the virtual execution of Estate Planning Documents:

  1. The persons must be connected to each other by an electronic method of communication in which they are able to see, hear and communicate to each other in real time; and 
  2. A lawyer must be providing the maker/donor/testator of the document with legal advice and services respecting the making, signing and witnessing of the Estate Planning Document.

As of now, the M.O. does not expressly allow for the execution of Estate Planning Documents in counterpart, but attorneys are working for legislation to obtain it; this would make virtual execution of Estate Planning Documents less cumbersome. 

German and Kimmitt also provided a in-depth list of the best practices for Lawyers who are assisting clients in the execution of Estate Planning Documents using video conferencing may wish incorporate the following best practices. 

See Marissa German & Barbara Kimmitt, Best Practice Considerations for Virtual Execution of Estate Planning Documents, Bennett Jones LLP, June 10, 2020. 

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

June 15, 2020 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Thursday, June 11, 2020

Understanding Digital Assets And Their Importance In Your Estate Planning

Digital-Assets-ImageAlthough most people may think of houses, businesses, or other ordinary finances when thinking about assets, since so many area of our lives have transferred to the digital realm, digital assets have become an integral part of the estate planning process.

Digital assets are any online record that a person owns. These online records could contain anything from a blog on cooking to an online rewards program. Failure to maintain and protect your digital assets can lead to serious consequences, especially for industry leaders that use digital accounts as a revenue stream. 

These digital assets may be financial accounts, online reward programs. electronic communication, or digital collections. Despite the the prevalent use and exchange of online data, many people neglect to include their digital assets in their estate plans. If you are one of these people that forgets to include your digital assets, your family members or loved ones may be unable to access your online accounts even if it is just to pay bills. 

In order to prevent this from happening you should make a list of your online accounts and be sure to include them in your estate plans.

See Russel Morgan, Understanding Digital Assets and Their Importance in Your Estate Planning, Forbes, June 8, 2020.

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

June 11, 2020 in Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0)

Wednesday, June 10, 2020

Did Mom Take Her Medicine? Keeping Eyes on Elders in Quarantine

03Retiring-illo-superJumboTechnology can help families monitor the health and safety of older people kept from their families due to the coronavirus. Norman Potter's mother, Dorothy, suffers from a chronic pulmonary illness and lives alone in Newland, N.C., two hours from Norman. 

Dorothy, 90, refuses to move closer to her son or daughter as she and her seven siblings were raised in Newland and she loves her house, church, and small group of friends. Norman said that his mother is fiercely independent. When the coronavirus struck, Norman installed a platform made by GrandCare Systems in his mother's house that allows her to chat with her grandchildren, and more importantly, has a motion sensor and two vital sign devices. 

Norman said that the technology gave him a sense of peace, since he did not want to be a risk to his mother by checking in on her in person. 

With older people being particularly more vulnerable to COVID-19, sales of products and services aimed at protecting the health and safety of homebound elderly are shooting through the roof. 

These services are a great way to look after your elderly loved ones if you cannot be there in person. 

See Susan B. Garland, Did Mom Take Her Medicine? Keeping Eyes on Elders in QuarantineN.Y. Times, June 5, 2020.

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

June 10, 2020 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

Friday, May 15, 2020

Article on What Works in Online Teaching

OnlinelearningMargaret Ryznar recently published an Article entitled, What Works in Online Teaching, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article. 

This Article offers lessons from an empirical study of an Online Trusts & Estates course. More than 280 law students were surveyed over three semesters on what works well for them and what does not in this online course. Their top three answers in each category serve as guidance for faculty creating online courses.

May 15, 2020 in Articles, Current Affairs, Current Events, Estate Planning - Generally, Teaching, Technology | Permalink | Comments (0)

Wednesday, May 13, 2020

California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used

IVFAfter her husband fell into an irreversible coma, a woman had his sperm extracted and stored at a tissue bank in hopes that she could one day conceive a child biologically related to him. 10 years after he died, the woman requested the sperm. The tissue bank could not find it, and the woman sued them, asserting contract and tort claims under California law. The trial court found in Robertson v. Saadat that the woman suffered no injury because she had no right to use the sperm to conceive a child. The woman appealed.

The California Court of Appeal, Second District, affirmed the trial court’s decision. Sperm is not governed by the rules that apply to gifts or personal property, and as gametic material, it must be specifically mentioned in testamentary documents. “In other words, the fact that plaintiff as Aaron’s spouse may be his legal next of kin has no bearing on whether she may use his sperm for posthumous conception.” Furthermore, the husband had no knowledge of the sperm extraction before his death, and therefore had no “‘decisionmaking authority as to the use of [the gametes] for reproduction.'”

The court also rejected the woman's argument that the sperm fell under the Uniform Anatomical Gift Act (UAGA) as the sperm would be "transplanted" into her. The legislative history of the UAGA indicates that “transplantation” under the UAGA refers to taking organs and tissue from a donor and placing them in recipients whose equivalent organs or tissue are damaged, not to conceive a child.

Because the woman could not prove that she was entitled to use the deceased husband's sperm as his surviving spouse, she had to show that it had been his intent to allow her to conceive with the extracted sperm. There must be an express indication in writing of an intent to allow the use of decedent’s genetic material for posthumous conception. The husband did not leave such writing, so there was no express intent.

With no intent nor entitlement to use the sperm, there was no value to the sperm, and the woman could not claim emotional distress caused by the inability to conceive the husband's child.

See California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used, Probate Stars, May 11, 2020.

May 13, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Science, Technology, Wills | Permalink | Comments (0)

Sunday, April 19, 2020

CLE on Electronic Wills: Recent Developments, State Legislation, the New Uniform Electronic Wills Act, and More

CLEThe American Law Institute is holding a webcast entitled, Electronic Wills: Recent Developments, State Legislation, the New Uniform Electronic Wills Act, and More, on Monday, April 20, 2020 at 1:00 - 2:00 pm Eastern. Provided below is a summary of the event.

Why You Should Attend

The “electronic wills” movement has become a hot topic in recent years and continues to stir debate while gaining cautious acceptance. Further, the Uniform Electronic Wills Act was recently approved by Uniform Law Commission and is now ready for consideration by the states. What is meant the term electronic will? What are the reasons behind this movement and what are the controversial elements associated with electronic wills?

What You Will Learn

Electronic wills are gaining wider acceptance as more states permit wills and other estate planning documents to be signed entirely electronically. Join us for a 60-minute webcast to find out the latest developments involving electronic wills, and the opportunities and risks associated with signing estate planning documents electronically.

Our faculty have been closely involved in the electronic wills movement for years and will discuss:

- Fundamental Elements of Will Statutes

- Factual Scenarios from Actual Electronic Will Cases

- Types of Electronic Wills

- Legal, Technological, and Market Factors Influencing the Electronic Wills Movement

- Legislative Activity in the United States

- The Uniform Electronic Wills Act

- How States are Responding to Proposed Legislation

- Perspectives on the Impact of Electronic Wills Movement on Professional Practices


All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend
Estate planning and financial planning professionals will benefit from our experienced panelists’ insights as to where the law may be headed and how the electronic wills movement might impact their professional practice.

April 19, 2020 in Conferences & CLE, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Thursday, April 16, 2020

Will Your Health Care Wishes Be Followed?

AdvancedirectiveThis highly unprecedented time has put health decisions to the forefront of many people's minds. If you or a loved one is required to be hospitalized, one of the first questions asked will be whether there is a Medical/Health Care Power of Attorney or a Living Will, otherwise known as an Advanced Directive.

The Medical or Health Care Power of Attorney allows a person to name another individual, known as the agent, to make health care decisions if you are unable to do so due to becoming incapacitated. They may also speak to your health care providers for any health care needs or services that may arise. The Living Will or Advanced Directive details what kind of life-sustaining interventions you might want if you have a terminal condition or if you fall into an irreversible coma. This type of guidance can allow for continuous family harmony when tragedy strikes.

Many states have online sources for these documents, and several states have recently passed statutes allowing digital notarization.

See Lisa Paine, Beth Cohn and Stephanie Fierro, Will Your Health Care Wishes Be Followed?, JaburgWilk.com, April 13, 2020.

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

April 16, 2020 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Technology | Permalink | Comments (0)

Thursday, April 9, 2020

Article on COVID-19 and Formal Wills

WillDavid Horton and Reid K. Weisbord recently published an Article entitled, COVID-19 and Formal Wills, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.

Most Americans do not have a will, but as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, probate law makes it difficult to create a will during this crisis. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a “formal” will executed in compliance with the Wills Act. Under this ancient statute, wills must be written on paper, signed by the testator, and also witnessed by two people who were present at the same time. Thus, the Wills Act’s insistence that parties physically occupy the same space poses an unforeseen barrier to testation during a time of widespread quarantine.

Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills.

This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize its requirements. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores three ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, and passing electronic will legislation.

April 9, 2020 in Articles, Current Affairs, Current Events, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic

DigitalGovernor Andrew Cuomo has signed various executive orders to address the issues faced by the state of New York and its residents during these unprecedented times as the country deals with the COVID-19 pandemic. On April 7, 2020, the Governor issued Executive Order 202.14 which modifies the laws concerning numerous documents pertaining to a person's estate plan.

The act of witnessing for the execution of certain instruments that is required under state laws is authorized to be performed utilizing audio-video technology. Those instruments include:

  • Last will and testament 
  • Lifetime trust
  • Statutory gifts rider to a statutory short form power of attorney
  • Real property instruments
  • Health care proxies
  • Instrument to direct the disposition of a person’s remains upon their death

See Cheryl L. Erato, The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic, nyestatelitigationblog.com, March 8, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Ira Bloom (Justice David Josiah Brewer Distinguished Professor of Law, Albany Law School) for bringing this article to my attention.

April 9, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Trusts, Wills | Permalink | Comments (0)