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.
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, 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.
Friday, January 26, 2018
Laura Wasser, a prominent and well-known celebrity divorce lawyer, launched a website yesterday that facilitates divorce at fairly reasonable costs. The website, itsovereasy.com, guides couples through the divorce process and helps them tackle difficult issues like property division, child custody, and child and spousal support. The starting cost is only $750. For an additional $750, users of the site can speak with a lawyer to help explain the process and resolve conflicts. The website also has YouTube videos that offer instruction to help navigate the process as well as referrals to financial planners, personal trainers, and counselors to help spouses rebuild their lives after the divorce is final.
See Disso Queen Laura Wasser Launches Do-It-Yourself Divorce Website, TMZ, January 25, 2018.
Tuesday, June 6, 2017
Alberto B. Lopez recently published an Article entitled, Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets, 24 Geo. Mason L. Rev. 183 (2016). Provided below is an abstract of the Article:
Recently, however, the digital age has clashed with the law of wills in courtrooms and legislatures around the country.14 As the world has become increasingly digitized, executors have encountered difficulty when seeking access to a decedent’s digital assets that are stored in password-protected online accounts.15 For example, the author of the international best seller Pomegranate Soup, Marsha Mehran, died unexpectedly and without explanation in Ireland.16 Mehran’s father, Abbas Mehran, sought to determine if his daughter left any literary works on her Google Chromebook after her tragic death. Hoping to unlock the Chromebook, Mr. Mehran sent four emails to Google seeking access to his daughter’s account, but Google did not reply to any of the emails.17 Eventually, Mr. Mehran hired an attorney and filed a petition in court asking for access to documents on his daughter’s Google Drive account.18 Following “several weeks of negotiation,” Mr. Mehran obtained a CD from Google that included over 200 documents written by his daughter.19 The process began with the untimely passing of Mr. Mehran’s daughter and ended with the delivery of the CD to Mr. Mehran, but took more than a year20 —a statistic that accounts for neither the personal hardship endured nor the legal expense incurred during that period.
Saturday, July 9, 2016
Sasha A. Klein & Mark R. Parthemer recently published an Article entitled, Who Will Delete the Digital You?: Understanding Fiduciary Access to Digital Assets, 30 Prob. & Prop. (No. 4) (July/August 2016). Provided below is a summary of the Article:
Our everyday lives are ruled by digital assets. They have largely replaced tangible ones, changing the way we interact and conduct business. Now, documents are stored in the cloud, photographs are uploaded to web sites, music is downloaded from web sites, conversations are text messages, and stacks of letters are e-mail folders. Living digital is unavoidable!
Today, fiduciaries face a world in which such assets and information, which used to appear in tangible form—letters, tax returns, bank statements, as well as music, art, and literature—now exist only in digital form. And, this digital content is not on servers owned or controlled by the decedent. From social media to banking, password-protected sites are used to perform daily affairs for business and pleasure alike, with a reliance on the promise of secure access. But what happens when that promise of security bars access when one dies or becomes incapacitated? Understand the developing legal environment to plan for fiduciary access to digital assets. We must be able to control our digital life and afterlife.
Sunday, July 3, 2016
As technology continues to flourish, it is important that we adjust our estates to include digital assets, like social media accounts, bank records, and e-mails. The modern-day estate generally includes these digital assets, but estate planners have yet to come up with an efficient solution to deal with them.
One main problem preventing sufficient estate plans has to do with access—most everyone is password protected, which makes it difficult for fiduciaries to gain entry. Today, while several social media account providers are utilizing ways for users to arrange posthumous access to their accounts, there is no legal guidance on how executors are supposed to identify, collect, and distribute these digital assets. With such uncertainty in the law and future of digital assets, it might be best for users to self-manage these issues and simply provide loved ones with their login information.
See Marjorie Suisman, The Virtual Estate, Private Wealth, June 17, 2016.
Saturday, July 2, 2016
Google Capital has routinely invested in privately held start-up companies but is now venturing in a new direction acquiring publicly traded companies, starting with Care.com—specializing in connecting families and caregivers. Google Capital invested $46.35 million in the growth-stage company, making it the biggest shareholder. The investment will create big opportunities for Care.com by allowing them to retain access to Google and Alphabet’s experts.
See Michael J. de la Merced, Google Capital Ventures into Public Companies with Care.com, NY Times, June 29, 2016.
Special thanks to Lewis Saret (Attorney, Washington, DC) for bringing this article to my attention.
Friday, May 13, 2016
Professionals who are involved with estate planning often have to engage in the difficult process of marketing themselves to potential clients. This article discusses some of the techniques that can be used to create an effective marketing strategy. One of the most important things to consider when creating a marketing strategy is what type of clients or markets you are going to target. It is also important to inform the potential clients you are marketing to about the type of experience your firm has to offer. Estate planners can build strong professional relationships with their clients by educating them. Incorporating different delivery methods is also an important marketing strategy. Finally, it is important for marketing ads to have great graphics and designs to attract customers and stand out from competitors.
See Craig R. Hersch, The Silver Bullet, Wealth Management, May 11, 2016.
Special thanks to Jim Hillhouse for bringing this article to my attention.