Wills, Trusts & Estates Prof Blog

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

Thursday, April 4, 2019

Bitcoin Surges as Cryptocurrency Market Suddenly Springs to Life

CryptoEarlier this week saw a surge in the price of the most popular form of cryptocurrency, Bitcoin, increasing its stock to the highest level since November of last year. Traders were at odds to figure out exactly what caused the increased interest, but it appeared that the demand leapt forward after the price breached the $4,200 level.

The price of Bitcoin had been calm for the last three months, though sudden swings are nothing new to the stock, especially considering last year's 74% crash. “The Bitcoin market and crypto market in general continues to be small relative to the rest of the markets -- and emotional,” said Jehan Chu, managing partner at blockchain investment and advisory firm Kenetic Capital. “It’s still very much subject to waves of enthusiasm.

George Harrap, chief executive officer at Bitspark, said his contacts in the Bitcoin community have yet to identify a catalyst for the sudden jump. The cryptocurrency’s susceptibility to wild price swings has made it popular among speculators, who are eager for a return to the glory days of 2017 when Bitcoin surged more than 1,400%.  This extreme volatility is a reason why the virtual currency has yet to reach its hoped-for potential in the global medium of exchange.

See Eric Lam, Bitcoin Surges as Cryptocurrency Market Suddenly Springs to Life, Bloomberg, April 2, 2019.

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

Wednesday, April 3, 2019

Article on Blockchain Wills

BlockchainBridget J. Crawford recently published an Article entitled, Blockchain Wills, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Blockchain technology has the potential to radically alter the way that people have executed wills for centuries. This Article makes two principal claims – one descriptive and the other normative. Descriptively, the Article suggests that traditional wills formalities have been relaxed to the point that they no longer serve the cautionary, protective, evidentiary and channeling functions that scholars have used to justify strict compliance with wills formalities. Widespread use of digital technology in everyday communications has led to several notable cases in which individuals have attempted to execute wills electronically. These wills have had a mixed reception. Three states currently recognize electronic wills and the Uniform Law Commission is drafting a model Electronic Wills Act This Article identifies some of the weaknesses in existing state statutes and the model law and considers how technology can address those problems.

This Article explores how blockchain, the open-source technology underlying cryptocurrency like Bitcoin, could be harnessed to create a distributed ledger of wills that would maintain a reliable record of a testator’s desires for the post-mortem distribution of estate assets. These blockchain instrument easily could qualify as wills under existing substantial compliance doctrine or the Uniform Probate Code’s harmless error rule. Blockchain wills would serve the true purpose of wills formalities – which is to authenticate a document as the one executed by the testator with the intention of having it serve as the binding directive for the distribution of her property. By uniting blockchain technology with the innovations of the best aspects of electronic wills legislation, a blockchain will could serve as a reliable, authentic and secure record of a decedent’s last wishes for disposition of her property.

This Article’s account has important implications for the legal profession. As financial institutions and governments have moved to develop blockchain-based solutions for the delivery of services, lawyers have lagged behind. In some legal circles, attorneys have become interested in “smart contracts” and the possibility of using blockchain to create a more accurate record of real property deeds. But most lawyers have not yet invested the requisite time and energy needed to understand how blockchain works and to develop systems that would use the technology effectively. By demonstrating how blockchain could make wills cheaper to prepare and less susceptible to tampering, this Article also points to multiple other uses for blockchain in the legal profession, including authentication of chain of ownership, record-keeping and drafting of all kinds. Even though lawyers have been slow to harness blockchain’s potential, the technology holds the promise to transform the practice of law into a form that will be unrecognizable to today’s lawyers.

April 3, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Technology, Trusts, Wills | Permalink | Comments (0)

Sunday, March 31, 2019

New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease

EyeThe Duke Eye Center have discovered that the small blood vessels in the retina at the back of the eye of patients with Alzheimer's are altered through the help of a new, non-invasive device. The researchers also revealed that they can distinguish between people with Alzheimer’s and those with only mild cognitive impairment. The study, published online in Ophthalmology Retina, a journal of the American Academy of Ophthalmology, brings forth a quick and inexpensive way to detect the disease in its early stages.

The imaging used in the research is called optical coherence tomography angiography (OCTA). It enables physicians to see blood vessels in the back of the eye that are smaller than a strand of hair. Researchers have focused several studies on the retina because it is an extension of the brain and shares many similarities with it, and thus the changes within the retina may mirror the changes within the brain in Alzheimer's sufferers.

The study consisted of using OCTA to study the retinas in 70 eyes of 39 Alzheimer’s patients with 72 eyes of 37 people with mild cognitive impairment, as well as 254 eyes of 133 cognitively healthy people. The researchers found that those with Alzheimer's had loss of small retinal blood vessels at the back of the eye and that a specific layer of the retina was thinner when compared to people with mild cognitive impairment and healthy people.

See New Study Shows an Eye Scan Can Detect Signs of Alzheimer's Disease, Science Blog, March 11, 2019.

March 31, 2019 in Current Events, Elder Law, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Thursday, March 21, 2019

Article on Online Tools under RUFADAA: The Next Evolution in Estate Planning or a Flash in the Pan?

ToolsJustin H. Brown and Ross E. Bruch recently published an Article entitled, Online Tools under RUFADAA: The Next Evolution in Estate Planning or a Flash in the Pan?, Probate and Property Magazine, Vol. 33 No. 2, March/April 2019. Provided below is an introduction to the Article.

Over the past five years, the estate planning process for digital assets has dramatically transformed. Much of this transformation is the result of the United Law Commission's introduction of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in September 2015, which a majority of US states and territories have adopted with some variations. RUFADAA, like its predecessor, UFADAA, was drafted with the intent to unify and clarify states laws with respect to a fiduciary's ability to access an individual's digital assets and electronic communications. However, unlike UFADAA, which presumed a decedent's consent for the decedent's personal representative to access her digital assets, RUFADAA places the burden on the decedent to provide express consent through the decedent's will or another mechanism. Under RUFADAA, an individual may use an "online tool," which is an account-specific feature that an online custodian (e.g., Apple, Google, Yahoo) may offer that enable its users to provide directions for disclosure or nondisclosure of digital assets to a designated person. Online tools are account-specific - in other words, using Google's online tool will not dictate how information held in the decedent's Apple account should be shared. Any assets that are not addressed with an online tool are subject to the terms of a testator's estate planning documents. When digital assets are not addressed by an online tool or an estate planning document, a providers terms of service agreement will dictate access and disclosure of a decedent's digital assets and electronic information.

March 21, 2019 in Articles, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Wednesday, March 20, 2019

CLE on Tax Treatment of Crytpocurrencies: What You Need to Know

CLEThe American Law Institute is holding a webcast entitled, Tax Treatment of Crytpocurrencies: What You Need to Know, on Friday, April 5th, 2019 from 1:00 - 2:00 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend
There’s a lot of buzz surrounding cryptocurrency as digital currency platforms gain acceptance for business transactions. There’s also an equal amount of confusion around how to treat cryptocurrencies for federal income tax purposes. Although the IRS has offered some guidance treating some cryptocurrencies as property, the buying, selling, and trading of cryptocurrencies, such as Bitcoin, for investment can still raise a lot of questions. The increasing use of digital money has resulted in new ways to acquire and use cryptocurrency, which raises further challenges. Legal counsel, tax advisers, and compliance professionals must fully understand the tax obligations to meet these compliance challenges.

What You Will Learn
Even though the IRS classifies all cryptocurrencies as property, there is still widespread uncertainty over the more complex factors when determining tax liability. Join us for this 60-minute webcast that focuses on the taxable events of cryptocurrencies and compliant reporting issues, including:

• Virtual currency tax compliance issues
• IRS Notice 2014-21: What is and isn’t addressed
• Tax treatment of Forks and Airdrops
• Token offerings and SAFTs
• Reporting obligations

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

Who Should Attend
This program is for any lawyer or accountant who is looking for a deeper understand of the tax obligations for cryptocurrencies.

March 20, 2019 in Conferences & CLE, Current Affairs, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0)

Friday, March 8, 2019

Facebook Plans to Turn Your Profile into ‘Virtual Grave’ When You Die

FbSocial media giant Facebook is adding a feature to profiles of those who have passed on that will allow guests to their page to leave comments on a "tribute" section. These memorialized profiles will be an electronic memorial for their deceased account holders.

Depending on the privacy settings of a memorialized account, Facebook friends can still write on the wall of its Timeline or comment on any posts the account holder made before they died. Facebook also has "legacy contacts," which are designated users that can manage the account after the originator has died. Legacy contacts will have the power now to control the tributes section including the ability to decide which other users can see and post tributes, delete posts and tributes, change who can view the page in its entirety, or even change tags of other users.

The ability to change pages into memorial pages started in 2009. The number of Facebook accounts belonging to deceased users continues to grow and will soon outnumber the amount of living users. Facebook has over two billion users but it is thought more than 10,000 of them die everyday.

See Charlotte Edwards, Facebook Plans to Turn Your Profile into ‘Virtual Grave’ When You Die, Fox News, March 6, 2019.

March 8, 2019 in Current Affairs, Current Events, Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0)

Friday, February 15, 2019

What Happens to My Digital Assets on Death or Incapacity?

IcloudMany 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.

February 15, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Technology, Web/Tech | Permalink | Comments (0)

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

TexasAlexandra 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.

February 14, 2019 in Articles, Current Affairs, Current Events, Estate Planning - Generally, Malpractice, Professional Responsibility, Technology | Permalink | Comments (0)

Wednesday, February 13, 2019

Parents Believe That the Instagram Account of Their Daughter Holds the Key to her Suicide

InstagramThe 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.

February 13, 2019 in Current Events, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0)

Sunday, February 10, 2019

CLE on Digital Assets in Estate Administration

CLEThe 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.

Course Content
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

February 10, 2019 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0)