Thursday, June 11, 2020
Although 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.
Thursday, January 30, 2020
Gerry W. Beyer recently published an Article entitled, Technology’s Impact on the Changing Future of the Trusts and Estate Practice, Wills, Trusts & Estates Law eJournal (2020). Provided below is an abstract of the Article.
Less than a few decades ago, technology had a minor impact on the legal profession. Today, a wide range of technology may be central to a lawyer’s practice, changing the way we plan for the future. While the integration of technology in the legal world has had its many benefits, keeping up with the wide array of rapidly changing technology now available is a dubious task for many practicing lawyers.
To stay ahead of the curve in your estate planning practice and lessen potential frustration and expense, it is important to understand and leverage the latest estate planning technology. This article will serve to inform estates and trusts lawyers of the available technology tools along with their benefits and disadvantages, with a special discussion of cryptocurrency and electronic wills.
Tuesday, April 30, 2019
According to new research from the Oxford Internet Institute, by 2070 the number of users on that are dead could outnumber the amount of living people using Facebook. The Institute predicts that at least 1.4 billion Facebook users will die before 2100, with the dead outnumbering the living in about 50 years. This could have serious implications for the manner in which the social media network stores our digital profiles.
The lead author of the study, Carl Ohman, said that, "These statistics give rise to new and difficult questions surrounding who has the right to this data, how should it be managed in the best interests of the families and friends of the deceased and its use by future historians to understand the past." Though Facebook is a for-profit firm, co-author David Watson says that there are also major public policy concerns. "Never before in history has such a vast archive of human behavior and culture been assembled in one place. Controlling this archive will, in a sense, be to control our history...It is also important to make sure that future generations can use our digital heritage to understand their history."
Many parts of the world is seeing a decline in new and continuing users of Facebook, either because of privacy concerns with the digital data as a whole or are turning to other social media applications. The study's predictions are based on data from the United Nations, which provided researchers with the expected number of deaths and total populations of each country in the world distributed by age, along with Facebook data from the company's Audience Insights feature.
See Christopher Carbone, Facebook Will be Overrun by Dead People Within 50 years, Researchers Say, Fox News, April 29, 2019.
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.