Wills and estates law in the digital age
•
6 gefällt mir•1,007 views
Virtual Assets in Probate Estates lawyers need to learn the new issues surrounding digital assets and online communications. Are you documenting virtual assets? What are the wishes of the deceased on the disposal of online profiles? Have you preserved access to crucial internet communications and document storage? Estate law now goes beyond tangible property and must include virtual assets. Is your law firm prepared? In this one-hour, CLE-eligible, webinar join Joshua Lenon, Clio’s lawyer in residence, and Rich Martin from Directives Online as they review what steps elder and estates lawyers need to take to document and preserve crucial online information when building a probate-focused law firm. Topics will include: - Classifying digital assets - Accessing online documents and communications post-mortem - Comparing wills to trusts for online assets disposition - Tools to manage decedents’ digital assets
Empfohlen
Empfohlen
Weitere ähnliche Inhalte
Was ist angesagt?
Was ist angesagt? (20)
Andere mochten auch
Andere mochten auch (20)
Ähnlich wie Wills and estates law in the digital age
Ähnlich wie Wills and estates law in the digital age (20)
Mehr von Clio - Cloud-Based Legal Technology
Mehr von Clio - Cloud-Based Legal Technology (20)
Kürzlich hochgeladen
Kürzlich hochgeladen (20)
Wills and estates law in the digital age
- 2. #ClioWeb Instructors Joshua Lenon • Attorney, admitted in New York • Lawyer in Residence at Clio Richard Martin • CEO, Directives Online
- 3. #ClioWeb • Classifyingdigital assets(15 minutes) • Accessingonline documentsand communicationspost- mortem(20minutes) • Comparingwills to trusts for online assetsdisposition(10 minutes) • Tools to manage decedents’digitalassets(10 minutes) • Questions(5 minutes) Agenda
- 5. #ClioWeb World Wide Web Use The WorldWide Webwas born in March1989 Since then, it has increasedexponentiallyeveryyear. 1995 2000 2005 2010 2015 44,838,900 413,425,190 1,029,717,906 2,034,259,368 3,211,830,672 Internet Users in the World
- 7. #ClioWeb Most Expensive Domain Names – Sex.com– sold in 2010 for $13 million – Fund.com – sold in 2008 for$9,999,950 – Porn.com– sold in 2007 for$9,500,000 – Diamond.com – sold in 2006 for$7,500,000 – Slots.com – sold in 2010 for$5,500,000 – Toys.com – sold in 2009 for$5,100,000 – Clothes.com – sold in 2008 for $4,900,000
- 8. #ClioWeb Internet User Demographics 0 20 40 60 80 100 120 18-29 30-49 50-64 65+ Age Group
- 9. #ClioWeb Important Issues What’s at Stake? qDefining DigitalAssets qDrivingForces:The Murkinessof CurrentLaw qProposedLegislation:UFADDAvs. PEAC vs.RevisedUFADDA qClient Recognition of Digital Assets, Digital AssetPlanning, and Staying Compliant
- 10. #ClioWeb Defining Digital Assets “[A]ny ‘electronic record’ that you own, license, or control. This includes just about any online account or digital file that you have authority to access. . ..” “Digital asset” means a record that is electronic. The term does not include an underlying asset or liability unless the asset or liability is itself a record that is electronic.” “Digital asset” means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” ‘Content’ when used with respect to wire oral or electronic communications is “any information concerning the substance, purport, or meaning of the that communication.” Nol o Fiduciary Access to Digital Access Act, 2014 Fiduciary Access to Digital Access Act, 2015 Privacy Expectation Afterlife and Choices Act, §6(a) Adopting definition for contents used in Wire and Electronic Communications Interceptions and Interception of Oral Communications Act, 18 U.S.C. § 2510(a)
- 11. #ClioWeb Categories of Digital Assets • Devicesand Data: Computer, Smartphone, Camera • ElectronicMail(email): Yahoo Gmail, Outlook • Online Accounts – SocialNetworking Sites: LinkedIn, Facebook, Instagram – Media: iTunes, Netflix, Hulu, Amazon – Reward Programs: Travel Miles, Grocery Store, Hotels • FinancialAccounts: Banking, Paypal, Bitcoin • BusinessAccounts: Domains, Blogs, Online Stores
- 13. #ClioWeb ACCESSING ONLINE DOCUMENTS AND COMMUNICATIONS POST-MORTEM
- 14. #ClioWeb Problems With Identifying Digital Assets DIGITAL ASSET Access Control Location
- 15. #ClioWeb CanBruceWillisleavehisiTunesmusictohiskids? Updated5:34AMET,TueSeptember4,2012 ByBrandonGriggs,CNN Who owns your downloaded music after you die? Bruce Willis may not challenge Apple to who owns his iTunes collection after his death, but one question remains: What does happen to your downloaded music collection once you fly to the sky?
- 16. #ClioWeb Search CNET Reviews News Video How To Games US Edition Yahoo releases e-mail of deceased Marine In case that raised privacy issues, company complies with court order and gives family access to messages. CNET › Tech Industry › Yahoo releases e-mail of deceased Marine April 22, 2005 6:29 AM PDT Tech Industry by Stefanie Olsen Carrington College® Gain Hands-On Training At A Career-Focused School. Learn More! Carrington College® Gain Hands-On Training At A Career-Focused School. Learn More! Complying with a court order, Yahoo agreed to give the family of a U.S. Marine killed in Iraq access to the soldier's e-mail. On Wednesday, an Oakland County probate court in Michigan ordered Yahoo to give the contents of the e-mail account to the father of Justin Ellsworth, 20, who was killed in November by a roadside bomb in Fallujah. Yahoo complied with the mandate Thursday, despite the company's policy of not giving e-mail passwords to anyone other than the account holder. "We are pleased the court resolved this matter," said Yahoo spokeswoman Mary Osako. The case highlights uncertainty about the privacy of people's digital life in the event of their death, and about the responsibilities Internet service providers have toward family members. Experts say there has yet to be a definitive court ruling on the status of e-mail as to whether it is an extension of the deceased's estate at the time of his or her passing. But, they say, it would stand to reason that e-mail account information and the data within the account would be treated equally to other possessions. "If an ISP's terms of service run contrary to what would seem to be a reasonable holding by a probate court, then you would need to have a hearing to find which position would win out--whether the public interest is better served by releasing personal data or by upholding a privacy holding in an ISP's terms of service," said Ray Everett-Church, principal for privacy consultancy PrivacyClue. Still, privacy experts say ISPs are within their rights to ask the courts to make such a ruling. "If it turned out some shenanigans were going on, Yahoo would be in breach of its own privacy policy," Everett-Church said. Connect with us Bang! You're dead. Who gets your email, iTunes and Facebook? Death and the medium Life and Death Online: Who Controls a Digital Legacy? Family fights to access son's Facebook account after his suicide to finally gain closure over tragic death
- 17. #ClioWeb Legal Uncertainty Around the Possession and Conveyance of Digital Assets FEDERAL LAW Ø StoredCommunicationsAct Ø FederalComputerFraud & AbuseAct STATE LAW Ø State ComputerFraud & AbuseActs Ø Contract Law Ø ProbateLaw
- 18. #ClioWeb Federal Law STORED COMMUNICATIONS ACT (1986) (a) Prohibitions.—Except as provided in subsection (b) or (c)— (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service— FEDERAL COMPUTER FRAUD AND ABUSE ACT (a) Whoever— . . . (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains— . . . (C) information from any protected computer if the conduct involved an interstate or foreign communication; . . . shall be punished as provided in subsection (c) of this section. 18 U.S.C. § 1030(a)(2)(C) Exceeds authorized access is defined as: [T]o access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter. 18 U.S.C. § 1030(e)(6) (emphasis added)
- 19. #ClioWeb United States v. Swartz
- 20. #ClioWeb State Law DIGITAL ASSETS & CONTRACT LAW • Terms of Service Use of Kindle Content. Upon your download of Kindle Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non- exclusive right to view, use, and display such Kindle Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Supported Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Kindle Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Kindle Content. Those terms will also apply,but this Agreement will govern in the event of a conflict. Some Kindle Content, such as Periodicals, may not be available to you through Reading Applications. Amazon • Choice of Law The Apple Music Service is operated by Apple from its offices in the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Apple Music Service. All transactions on the Apple Music Service are governed by California law, without giving effect to its conflict of law provisions. Your use of the Apple Music Service may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Apple or relating in any way to your use of the Apple Music Service resides in the courts in the State of California. Risk of loss and title for all electronically delivered transactions pass to the purchaser in California upon electronic transmission to the recipient. No Apple employee or agent has the authority to vary this Agreement Apple
- 21. #ClioWeb State Law DIGITAL ASSETS & CONTRACT LAW • Non-transferability No Right of Survivorship and Non- Transferability. You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted. Yahoo Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Pinterest without restriction. Any attempted transfer or assignment in violation hereof shall be null and void Pinterest • Reciprocal License You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition: 1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty- free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. Facebook
- 22. #ClioWeb Some Non-Legislative Alternatives Facebook • Sets up a timeout period • Alert Me: Lets the account holder know when the timeout period has ended • Notifies contacts and share data • Optionally delete account Google – Inactive Account • Memorialize Account • Delete Account Facebook – Legacy Contact
- 23. #ClioWeb Proposed Legislation • Acts that Address Email only – CONNECTICUT – RHODE ISLAND • Some Acts Permit Access Only to Social Networking Sites and Email Accounts – OKLAHOMA – IDAHO • Some Acts Permit Access to Assets Held by Custodians to the Extent Permitted by Law – INDIANA • Other Acts Provide for Termination Only of All On-Line Accounts – NEVADA
- 24. #ClioWeb Uniform Fiduciary Access to Digital Assets Act (UFADAA) July 16, 2014: Uniform Law Commission approved a final draft Of a Model Code. The Act does the following: • defines digital assets • provides default rules • addresses account holder intent • addresses privacy concerns The law attempted to provide fiduciaries access to digital assets while leaving the existing law of contract, Copyright, banking, agency, privacy and trusts in place. 26 states introduced versions of the draft The law died or lay dormant 25 of the 26 A modified version of the bill passed in Delaware
- 25. #ClioWeb Uniform Law Commission State by State update
- 26. #ClioWeb UFADDA vs. PEAC vs. Revised UFADDA
- 27. #ClioWeb UFADDA vs. PEAC vs. Revised UFADDA
- 28. #ClioWeb PRIVACY EXPECTATIONS AFTERLIFE AND CHOICES ACT (PEAC) • Privacy is the default • May only receive outside of the envelope information • Internet Industry’s response to UFADAA • Applies to “content” and “electronic communication”
- 29. #ClioWeb Client Recognition of Assets, Digital Estate Planning and Staying Compliant Create a List of All Digital Assets • Tangible assets • Email • Social Media Content • Financial Accounts • Online business Make a List of How to Access Each Digital Asset • Keep the list of Digital Assets and the Access List separate • On line sites • Attorney • Safe • Executor, Trustee, Fiduciary Encourage Client to Back Up and or Archive Digital Asset Content • Storage media, optical devices, hard drives, • Online back up services Complete Beneficiary Designations for Digital Access in Wills or Trusts • Wills, Trusts, Power of Attorney should include language to handle • Access • Control • Conveyance • Remember to establish the scope of authority
- 30. #ClioWeb Sample Language POWER OF ATTORNEY Digital Assets. My attorney-in-fact shall have (i) the power to access, use and control my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops or such comparable items as technology develops for the purpose of accessing, modifying, deleting, controlling or transferring my digital assets, and (ii) the power to access, modify, delete, control and transfer my digital assets, including but not limited to, my emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts and similar digital items which currently exist or may exist as technology develops or such comparable items as technology develops The Digital Beyond
- 31. #ClioWeb Sample Language WILLS AND REVOCABLE TRUSTS The Digital Beyond Digital Assets. My executor shall have the power to access, handle, distribute and dispose of my digital assets. Definitions: “Digital Assets.” “Digital assets” includes files stored on my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops or such comparable items as technology develops. The term “digital assets” also includes but is not limited to emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts and similar digital items which currently exist or may exist as technology develops or such comparable items as technology develops, regardless of the ownership of the physical device upon which the digital item is stored.
- 32. #ClioWeb Other Issues • Consider a clause permitting the executor to hire someone with more technical knowledge to assist in locating and accessing digital assets • Reference any external lists of digital assets, passwords, user names as well as their location. Sample language: I have prepared a memorandum with instructions concerningmydigital assets and their access,handling, distributionand disposition.I direct my executorand beneficiaries tofollowmy instructions concerningmy digital assets.
- 33. #ClioWeb Estate Documents • Some estate planning groups (Wealth Counsel) have already incorporated language into their documents regarding digital assets and fiduciary or PR access. • Check with your local Bar for possible suggestions. • Example of headache avoidance: • The U.S. Mail is NO LONGER a reliable means for uncovering hidden or undiscovered accounts!! Many folks, even aging baby boomers, have gone paperless. Fiduciaries need access to the deceased’s email. You don’t want a re-file or redistribuiton.
- 34. #ClioWeb COMPARING WILLS TO TRUSTS FOR ONLINE ASSETSDISPOSITION
- 35. #ClioWeb Wills vs. Trusts • Intangible Propertyvs.ContractualRights • Publicvs. Non-publicdisclosure • Flexibilityto Update • Not an either / or proposition – Incorporate via document
- 36. #ClioWeb TOOLS TO MANAGE DECEDENTS’ DIGITAL ASSETS
- 38. #ClioWeb Statute of Limitations Field
- 39. #ClioWeb Statute of Limitations Field
- 40. u DirectivesOnline.com A Clio Affiliate Partner u Emergency Health & Legal Info u Secure Asset Inventory System u Rich Martin Founder
- 41. Emergency Access to medical & legal info. u Improve client satisfaction and retention u We generate a custom wallet card providing emergency access to medical information and key legal documents. u Potentially life saving information available such as: medications, allergies, chronic conditions (i.e. diabetes, heart disease) physician’s name, emergency contact information. u Legal documents such as: advance directives, healthcare power of attorney, living will, organ donation,, hospital visitation Form, DNR,DNI etc. POLST orders u We can private label our service to market YOUR practice.
- 42. Medical Card
- 43. Asset Inventory, Storage & Sharing u Highly Secure | Simple to Use | Flexible | u Lost Assets make the probate process even more stressful and chaotic. u Securely store and selectively share asset location with trusted friends, family or advisors. u Examples of hard to find documents: u Real Estate Folder-keep a copy of your deeds u Insurance Folder- Store your Life Insurance Policy u Financial-Tax preparer & Financial advisor contact info. Safe deposit box location
- 44. Security & Backup u HIPAA - Compliant Socket Layer (SSL) connection. u HIPAA - Compliant fax and email retrieval of stored documents. u Advanced backup technology protecting your clients’ data.