Gerry W. Beyer

The State of Elder Law Scholarship: SSRN Articles

May 19, 2014July 29, 2014 Eleanore

Memento Mori: Death and Wills by Karen S. Sneddon Abstract: Death. The mere point out of the phrase sends shivers down the backbone or provokes a nervous giggle. Modern reactions to loss of life vary from avoidance, as proven by the abundance of dying euphemisms, to fascination, as proven by the quantity of films and tv exhibits centered on dying, together with Twilight’s vampires and The Walking Dead’s zombies. Estate planning is the authorized surroundings wherein an individual confronts his or her mortality and participates within the formulation of his or her legacy. Contextualizing the expertise as a memento mori expertise promotes the perform of the property planning course of, particularly the drafting of the Will. The Will is the doc that nominates the consultant of the testator and the guardians of the testator’s minor youngsters. The Will offers cherished mementos of a life lived. “Remember you have to die” prompts reflection and contemplation.
Health Care Spending and Financial Security after the Affordable Care Act by Allison T. Hoffman Abstract: Health insurance coverage has fallen notoriously quick of defending Americans from monetary insecurity attributable to well being care spending. The Patient Protection and Affordable Care Act (“ACA”) tried to ameliorate this shortcoming by regulating medical insurance. The ACA provides a brand new coverage imaginative and prescient of how medical insurance will (and maybe ought to) serve to advertise monetary safety within the face of well being care spending. Yet, the ACA’s coverage imaginative and prescient applies in a different way amongst insured, primarily based on the sort of insurance coverage they’ve, leading to inconsistent varieties and ranges of monetary safety amongst Americans. To look at this image of inconsistent monetary safety, this Article affords a taxonomy to explain methods wherein medical health insurance regulation can promote monetary safety. It then makes use of this taxonomy to map the impact the ACA may have on the monetary safety of numerous insured populations. Specifically, it analyzes how a lot an individual ill would possibly spend out of pocket on well being care in three eventualities: an individual with common protection by a person-market medical insurance trade, a employee with employer-sponsored insurance coverage, and a retiree with Medicare and a supplemental insurance coverage plan. This evaluation reveals two results. First, the ACA alleviates monetary danger from well being care spending to some extent in all three eventualities. But, secondly, the ACA preserves (and will even exacerbate) variability within the diploma and kind of monetary threat remaining throughout the three eventualities. In impact, the ACA asserts and affirms totally different visions of the function of medical health insurance in selling monetary safety for various individuals. This inconsistency leaves some insured particularly susceptible to spending and creates complexity that will impede insured from comprehending these factors of vulnerability.
Contemporary Trusts and Estates – An Experiential Approach by Jerome Borison, Naomi Cahn, Susan N. Gary, & Paula A. Monopoli Abstract: In this essay in a particular challenge devoted to educating trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2nd. ed. Aspen 2014) mirror on how the instructing of trusts and estates can combine coverage, apply, doctrine, and centuries of custom. They describe the genesis of their downside-based mostly casebook and the affect of the Carnegie Report on their alternative of pedagogic framework. Each of the co-authors embraced the elemental rules advocated by the Carnegie Report, which counsels that authorized schooling ought to combine “theoretical and sensible authorized data and professional identification.” This essay goes on to stipulate how the guide incorporates an issue-primarily based methodology in addition to an progressive selection of ordering the chapters that tracks the chronological path of property planning, addressing the lifetime use of trusts first, adopted by points of will validity and interpretation. Drafting workout routines complement the issues in addition to conventional instances that illuminate concept and follow. With chapters on planning for incapacity, the federal property and present tax, property administration and charitable trusts in addition to primary doctrine on intestacy, wills and trusts, the ebook displays the up to date challenges addressed by trusts and estates attorneys. The co-authors have discovered that the guide’s modern strategy engages college students in a means that makes the research of trusts and estates related and college students observe-conscious.
Viable Solutions to the Digital Estate Planning Dilemma by Jamie Patrick Hopkins & Ilya A. Lipin Abstract: Countless persons are dying with out correct digital estate plans in place, leaving billions of dollars of belongings unaccounted for within the digital world. This is happening partially as a result of people are sometimes unaware that conventional property planning instruments and methods, comparable to wills, are ailing-geared up to deal with the distinctive challenges of digital estate planning. As a consequence, the bulk of Americans are vastly unprepared for his or her digital afterlife, unintentionally foregoing digital estate planning altogether and leaving their belongings trapped in a digital purgatory. With the continuing progress in our reliance on know-how, interplay by way of social media, digitization of particular person’s property, and additional development of new Internet applied sciences, the quantity and worth of our digital belongings are rising exponentially. In response to this instant want for digital estate planning and administration of digital belongings, some companies started to supply their customers the flexibility to plan for the disposition of their digital property upon their dying. However, as a result of novelty of this space of regulation, the enterprise options at present afforded typically go away extra questions than solutions about what occurs to the person’s digital property, increase considerations about privateness and safety, and increase disputes over their total effectiveness within the property plan. This Essay examines the significance and growing prevalence of digital property, discusses the challenges going through conventional property planning within the rising world of digital belongings, and suggests a workable technique for the creation of a properly-developed and manageable digital estate plan.
Who Said Learning Trusts & Estates Can’t Be Fun? by Gerry W. Beyer Abstract: From even earlier than their first day of regulation faculty, Texas Tech University School of Law college students have the chance to understand the significance of the property planning space and to know that it may be each an pleasing and rewarding space of regulation wherein to follow. During orientation, which takes place the week earlier than lessons begin, new college students take part in full-day applications centered on a selected space of observe both of their very own selecting or assigned by the administration. For the 2013 coming into class, I was in cost of two full-day Estate Planning Tracks with a complete of roughly thirty-5 getting into college students. As their authorized training continues, college students have further publicity, some necessary and a few non-compulsory, to property planning matters. In my first yr required Property course, I spend a number of days reviewing the fundamental rules of intestate succession and wills. Texas Tech then requires all college students to finish a 4-credit score introductory course entitled Wills and Trusts as a situation of commencement throughout their second or third yr. Students needing a extra subtle therapy might take programs equivalent to Estate Planning, Texas Estate Administration, Guardianship, Estate and Gift Tax, Elder Law, and Marital Property. Students can also compete for a coveted place as an editor for the Estate Planning and Community Property Law Journal that Texas Tech publishes. This Article reveals my fundamental instructing philosophy and the final pedagogical methods I make use of to make Trusts and Estates subjects each enjoyable and related. I will then share with you the precise instruments I use when educating the introductory course in addition to the superior programs comparable to Estate Planning and Texas Estate Administration. It is my hope that you simply could possibly achieve perception from my strategy to reinforce your individual instructing and the expertise you present to your college students.
Older Persons and Compromised Decisional Capacity: The Role of Public Policy in Defining and Developing Core Professional Competencies by Marshall S. Kapp Abstract: Issues regularly come up regarding the cognitive and emotional potential of older people to make sure legally important selections. In confronting these points, the skilled involvement of each attorneys and physicians (and different well being care professionals), performing each individually and collaboratively, is fascinating. This article describes the doable contributions of public coverage in growing, by fostering improvements in medical and authorized training, core competencies for physicians and attorneys which can be important to enhancing interprofessional collaboration on behalf of older people suspected of being compromised of their capacity to make sure important choices. Additionally, concepts are urged to handle sure points of the present coverage surroundings which will inhibit attorneys and physicians from optimum interprofessional interplay on this sphere.

Estate planning: The digital details you never thought about

April 25, 2014July 30, 2014 Eleanore

Click here to view original web page at Estate planning: The digital details you never thought about

One of the brand new points of property planning that I’m positive you haven’t given a lot thought to is what will occur to the net you after you’re gone. If you’re like most of us, you in all probability occupy a good bit of on-line actual property. You have a Facebook web page or a Twitter account, you have pictures saved on Flickr or Instagram, maybe you have a weblog, and you nearly actually have a lot of accounts on-line, issues that you signal into with a password, like your checking account and so forth. In this attention-grabbing article, a professor on the Wharton School of Business lays out precisely what you ought to do to plan for what will occur to those on-line assets within the occasion of your loss of life. It could appear just a little morbid, but it surely’s realy vital. Imagine, for instance, the difficulties your partner could face if you die with out leaving any details on how you can entry your on-line banking and there are payments that want paying. – FD
Wharton emeritus finance professor Jack Guttentag is just not a very morbid particular person, however he has given appreciable thought to what he needs to occur to his private and professional digital results after his demise. Guttentag, ninety, runs The Mortgage Professor, a web based enterprise that gives recommendation on house mortgage-associated points.

“I don’t have any intention of dying quickly — I have a 5-12 months marketing strategy — however I have to method this chore as if I have little or no time left,” he says. “It isn’t simple.”

Upon his dying, Guttentag has written directions to his spouse to place his web site up on the market in session together with his two companions and attorney. Over the years, he has had gives for it, however Guttentag says he never had the inclination to offer it up or work for another person. (He expects the worth, which incorporates a number of logos and URLs linked to the enterprise, to develop over time.)

On his desk, Guttentag has a manila folder containing a sheaf of papers that checklist consumer IDs, PIN numbers and passwords for varied on-line companies. He has additionally digitized nearly all of the photographs he has taken over time; they’re in a file on his laptop and in addition on Dropbox, the cloud storage supplier. He has not, nonetheless, digitized household footage inherited from different members of the family. “My son did a few of them in creating a slideshow for my ninetieth birthday celebration, however most of them are nonetheless in containers in my workplace, stoking my guilt,” Guttentag notes.

At a time when most individuals are spending an increasing number of hours on-line – and, within the course of, making a legacy of information that will outlive them — the inevitability of demise poses new challenges. Not solely are there customers who, like Guttentag, want to tidy up their digital results earlier than they die; there are additionally property legal professionals within the early course of of building what constitutes digital possession, expertise corporations clamoring to supply new companies that take care of the remnants of digital life, and social media firms developing with platforms that memorialize the useless.

“The norms are evolving,” says Andrea Matwyshyn, a professor of authorized research and enterprise ethics at Wharton. “There will be a suggestions loop over the following few years: Customer savvy and class will enhance, firms will start to streamline their approaches and the authorized trade will formalize property planning.”

Death within the Digital Age

According to a report from digital analysis agency eMarketer, American adults spent greater than 5 hours every day on the Internet final yr, up from 4 hours and 31 minutes in 2012, and three hours and 50 minutes in 2011. Social media websites occupy a big portion of that on-line time: Data from analysis agency Ipsos Open Thinking Exchange reveals that Americans between the ages of 18 and sixty four who use social networks say they spend a median of O.P hours per day doing so. Nearly three-quarters of on-line American adults use social networking websites, and a few forty two% of on-line adults now use a number of social networking websites, says Pew Research Center.

“We have change into progressively extra reliant on digital communication and social media,” notes Matwyshyn. “To many individuals, their digital persona is equally — and in some circumstances, extra — vital [than their physical] identification.”

And but only a few individuals have made preparations for what will occur to their digital persona and on-line possessions once they die. In 2012, the federal authorities added a “social media will” to its record of non-public finance suggestions. The authorities suggests appointing a web based executor to be answerable for the closure of electronic mail addresses, blogs and different on-line accounts. This individual would additionally perform the deceased’s needs with regard to social media profiles, whether or not his or her need is to fully cancel all profiles or hold them up as a memorial for family and friends to go to.

Most know-how and social media corporations have insurance policies round what occurs to customers’ on-line content material once they die. After all, our digital results — the photographs we put up, the emails we draft and the standing updates we ship — don’t solely belong to us within the first place. They belong, at the least partially, to corporations like Twitter and Yahoo that retailer the knowledge on their servers.

“Companies are in a fragile place,” says Matwyshyn. “On one hand, there are useful resource constraints as a result of they’re coping with numerous distinctive requests, which is pricey and time-consuming. On the opposite hand, treating households of a deceased person with the sensitivity that the lack of a beloved one requires is the moral and proper factor to do. There can also be a enterprise alternative right here to construct goodwill with the neighborhood of the deceased.”

Last yr, as an example, Google launched an inactive account supervisor function that lets customers resolve the destiny of their accounts once they die. Twitter, in the meantime, will deactivate an account upon the request of an property executor or an instantaneous member of the family as soon as a replica of a dying certificates is supplied. Facebook both removes the account upon request by an executor or permits profiles to be changed into memorials in order that buddies should put up feedback, images and hyperlinks to the deceased’s profile.

Flickr, which is owned by Yahoo, operates beneath its father or mother firm’s phrases of service settlement, which stipulates that the person ID and contents inside an account terminate upon an individual’s demise. YouTube, which is owned by Google, operates below Google’s coverage. Instagram, in the meantime, says on its web site: “In the occasion of dying of an Instagram User, please contact us.”

Users may, for instance, put up a remembrance on their deceased uncle’s web page on his birthday. Or “go to” a good friend on the anniversary of his or her dying. “In the previous, we gathered across the gravesite, however right this moment we now have new methods to speak on social media,” says David Bell, professor of selling at Wharton.

“[Mourning practices] fluctuate individual to individual and tradition to tradition,” Bell notes. “But we will see new customs develop when it comes to decorum and decency in addition to an emergence of various platforms and instruments for individuals to pay their respects. Families will be capable to maintain this stuff entering into perpetuity.”

But on-line memorials are delicate entities. Who has custody of the profile? Who will get entry? Who has the fitting to resolve what’s acceptable to incorporate, and what’s concerned in these choices? Jed Brubaker, a PhD candidate in informatics on the University of California, Irvine who research digital identification, social media and human centered computing, is immersed in questions of digital heirlooms. “In speaking about issues like Tumblr, Twitter, Facebook, Instagram and different quasi-public social media which might be accessible to numerous individuals, there’s an unresolved query of possession,” he notes. “Is our digital ‘stuff’ all the time [considered] ‘property’?”

If it’s not property, although, then what precisely is it? “It’s communication,” he says. “We’re speaking about content material on a Facebook wall or a Twitter feed. Communication that traditionally has been ephemeral is now persistent. It sticks round — there’s a report, an information path.”

Monetizing Digital Heirlooms

The overwhelming majority of our digital property — akin to digital images or Facebook timelines — have little worth past the sentimental. But even these require cautious property planning, in accordance with Gerry W. Beyer, a professor at Texas Tech University School of Law. In the outdated days, he says, individuals handed down scrapbooks, memoirs, image albums and musty information of previous newspaper clippings. “But now, many people don’t have bodily property like that to switch. So all that stuff will disappear.”

Of course, there are many methods to remodel these digital property into bodily objects. You might obtain your e-mail messages and again up your laptop recordsdata on a disk, as an illustration, or you may put them on a CD or flash drive. You may even print them to take away them from the digital realm. But how many individuals truly do that? Case in level: Whenever Beyer presents at a convention, he asks the viewers: “How a lot of you have images which might be priceless to you that you haven’t printed?” Nearly everybody within the room raises his or her hand, he says. “If you don’t plan for these, your family members might lose entry…. If you care what occurs to your digital belongings after you die — your images, your property films, your e-mails — you need to plan.”

And sure digital property have financial worth each at the moment and sooner or later, equivalent to domains or a weblog that generates earnings. Avatars or digital property in on-line video games reminiscent of World of Warcraft or Second Life even have quantifiable worth, Beyer notes.

Digital property — private iTunes music libraries and Kindle books, for instance — are in a unique class, nevertheless. If you have, say, a big digital ebook assortment, the switch of utilization rights is restricted and carefully monitored. “You don’t technically personal these,” says Beyer. “You have a license to make use of them. That license dies with you. But if these are owned in a belief, your beneficiaries could possibly proceed to make use of them.”

Frequent flyer miles or lodge factors, whereas additionally a part of your digital profile, current some difficult questions, too. These property are ruled by a contract with the corporate, in line with Wharton’s Matwyshyn. Most contracts specify that the miles and factors are private and can’t be shared except given express permission from the corporate. “It is feasible that airways and lodges can be keen to entertain a request to switch, however they’ve a unilateral proper to say: ‘I’m sorry to your loss however these factors are now not legitimate,’” she notes.

A rising variety of corporations are discovering methods to monetize publish-mortem digital results. After all, simply because most of our digital content material is sentimental, it doesn’t imply it’s of no financial worth. “Quite the alternative, truly,” says Pinar Yildirim, a professor of promoting at Wharton. “Say you add images in the present day, and one hundred years later, lengthy after you are gone, your nice-nice grandson needs to have them. It represents a chance for any firm that will wish to justify its funding in storing that digital content material.”

Some corporations, together with W-Z Safe, Estate++ and SecureSafe, act as repositories to your digital accounts. They function digital secure deposit containers, holding onto your usernames and passwords. When you die, that info will get forwarded to the individual or folks you specify.

“After a cherished one dies, oftentimes a member of the family or buddy must get entry to their digital materials — their social media, their e-mails or they only wish to pay some payments from a web based account,” says Texas Tech’s Beyer, who’s a nationwide skilled in property and belief points. “But with out planning, corporations might take weeks, months and even years earlier than they grant entry.”

Other firms help in efforts to find digital belongings of the deceased. Webcease, as an illustration, helps folks discover souvenir pictures on websites like Snapfish or Shutterfly; amassed earned miles or factors on journey, resort or airline loyalty packages; private interactions on social and professional websites like Facebook and LinkedIn, and private accounts on websites like Amazon, PayPal, Netflix or eBay. “They are primarily search corporations that will search all around the Internet to seek out what’s on the market,” Beyer notes.

Other companies on this market focus on serving to relations acquire entry to the computer systems and accounts of people that have died, in keeping with John Sileo, a Denver-based mostly knowledgeable on id theft and privateness. “Say your partner or dad or mum handed away and you have to get into his or her account, however the firm gained’t let you as a result of you weren’t listed on the account, or you didn’t have power of attorney. One of your choices is to enlist the assistance of a so-known as ’moral hacker,’” who might infiltrate accounts you have a reliable proper to, says Sileo. “There are people who find themselves making some huge cash doing this behind the scenes.”

But these are exactly the situations that Guttentag, the nonagenarian Mortgage Professor, hopes to keep away from. This is why he’s doing his finest to arrange his digital results now. “I don’t need to go away a multitude for my spouse and kids to wash up when I die,” he says. “If that had been to occur tomorrow, that pledge wouldn’t be absolutely realized due to the nonetheless unfinished enterprise I haven’t but gotten round to. But 2014 is the yr.”

Rest in Peace: Planning for Your Demise, Digitally

April 24, 2014July 29, 2014 Eleanore

Wharton emeritus finance professor Jack Guttentag is not a particularly morbid person, but he has given considerable thought to what he wants to happen to his personal and professional digital effects after his demise. Guttentag, 90, runs The Mortgage Professor, an online business that provides advice on home loan-related issues.

“I don’t have any intention of dying soon — I have a five-year business plan — but I need to approach this chore as if I have very little time left,” he says. “It isn’t easy.”

Upon his death, Guttentag has written instructions to his wife to put his website up for sale in consultation with his two partners and attorney. Over the years, he has had offers for it, but Guttentag says he never had the inclination to give it up or work for someone else. (He expects the value, which includes several trademarks and URLs connected to the business, to grow over time.)

On his desk, Guttentag has a manila folder containing a sheaf of papers that list user IDs, PIN numbers and passwords for various online services. He has also digitized almost all the photos he has taken over the years; they are in a file on his computer and also on Dropbox, the cloud storage provider. He has not, however, digitized family pictures inherited from other family members. “My son did some of them in developing a slideshow for my 90th birthday party, but most of them are still in boxes in my office, stoking my guilt,” Guttentag notes.

At a time when most people are spending more and more hours online – and, in the process, creating a legacy of data that will outlive them — the inevitability of death poses new challenges. Not only are there consumers who, like Guttentag, wish to tidy up their virtual effects before they die; there are also estate lawyers in the early process of establishing what constitutes digital ownership, technology firms clamoring to offer new services that deal with the remnants of digital life, and social media companies coming up with platforms that memorialize the dead.

“The norms are evolving,” says Andrea Matwyshyn, a professor of legal studies and business ethics at Wharton. “There will be a feedback loop over the next few years: Customer savvy and sophistication will increase, companies will begin to streamline their approaches and the legal industry will formalize estate planning.”

Death in the Digital Age

According to a report from digital research firm eMarketer, American adults spent more than five hours each day on the Internet last year, up from four hours and 31 minutes in 2012, and three hours and 50 minutes in 2011. Social media sites occupy a large portion of that online time: Data from research firm Ipsos Open Thinking Exchange shows that Americans between the ages of 18 and 64 who use social networks say they spend an average of 3.2 hours per day doing so. Nearly three-quarters of online American adults use social networking sites, and some 42% of online adults now use multiple social networking sites, says Pew Research Center.

“Customer savvy and sophistication will increase, companies will begin to streamline their approaches and the legal industry will formalize estate planning.”

“We have become progressively more reliant on digital communication and social media,” notes Matwyshyn. “To many people, their digital persona is equally — and in some cases, more — important [than their physical] identity.”

And yet very few people have made arrangements for what will happen to their digital persona and online possessions when they die. In 2012, the federal government added a “social media will” to its list of personal finance recommendations. The government suggests appointing an online executor to be responsible for the closure of email addresses, blogs and other online accounts. This person would also carry out the deceased’s wishes with regard to social media profiles, whether his or her desire is to completely cancel all profiles or keep them up as a memorial for friends and family to visit.

Most technology and social media companies have policies around what happens to users’ online content when they die. After all, our digital effects — the pictures we post, the emails we draft and the status updates we send — don’t solely belong to us in the first place. They belong, at least in part, to companies like Twitter and Yahoo that store the information on their servers.

“Companies are in a delicate position,” says Matwyshyn. “On one hand, there are resource constraints because they are dealing with a large number of unique requests, which is expensive and time-consuming. On the other hand, treating families of a deceased user with the sensitivity that the loss of a loved one requires is the ethical and correct thing to do. There is also a business opportunity here to build goodwill with the community of the deceased.”

Last year, for instance, Google launched an inactive account manager feature that lets users decide the fate of their accounts when they die. Twitter, meanwhile, will deactivate an account upon the request of an estate executor or an immediate family member once a copy of a death certificate is provided. Facebook either removes the account upon request by an executor or allows profiles to be turned into memorials so that friends may still post comments, photos and links to the deceased’s profile.

Flickr, which is owned by Yahoo, operates under its parent company’s terms of service agreement, which stipulates that the user ID and contents within an account terminate upon a person’s death. YouTube, which is owned by Google, operates under Google’s policy. Instagram, meanwhile, says on its site: “In the event of death of an Instagram User, please contact us.”

Users might, for example, post a remembrance on their deceased uncle’s page on his birthday. Or “visit” a friend on the anniversary of his or her death. “In the past, we gathered around the gravesite, but today we have new ways to communicate on social media,” says David Bell, professor of marketing at Wharton.

“[Mourning practices] vary person to person and culture to culture,” Bell notes. “But we will see new customs develop in terms of decorum and decency as well as an emergence of different platforms and tools for people to pay their respects. Families will be able to keep these things going in perpetuity.”

But online memorials are delicate entities. Who has custody of the profile? Who gets access? Who has the right to decide what’s appropriate to include, and what is involved in those decisions? Jed Brubaker, a PhD candidate in informatics at the University of California, Irvine who studies digital identity, social media and human centered computing, is immersed in questions of digital heirlooms. “In talking about things like Tumblr, Twitter, Facebook, Instagram and other quasi-public social media that are accessible to lots of people, there’s an unresolved question of ownership,” he notes. “Is our virtual ‘stuff’ always [considered] ‘property’?”

“Communication that historically has been ephemeral is now persistent. It sticks around — there’s a record, a data trail.”

If it’s not property, though, then what exactly is it? “It’s communication,” he says. “We’re talking about content on a Facebook wall or a Twitter feed. Communication that historically has been ephemeral is now persistent. It sticks around — there’s a record, a data trail.”

Monetizing Digital Heirlooms

The vast majority of our digital assets — such as digital photos or Facebook timelines — have little value beyond the sentimental. But even these require careful estate planning, according to Gerry W. Beyer, a professor at Texas Tech University School of Law. In the old days, he says, people passed down scrapbooks, memoirs, picture albums and musty files of old newspaper clippings. “But now, many of us don’t have physical property like that to transfer. So all that stuff will disappear.”

Of course, there are lots of ways to transform those digital assets into physical objects. You could download your e-mail messages and back up your computer files on a disk, for instance, or you could put them on a CD or flash drive. You could even print them to remove them from the digital realm. But how many people actually do this? Case in point: Whenever Beyer presents at a conference, he asks the audience: “How many of you have photographs that are valuable to you that you haven’t printed?” Nearly everyone in the room raises his or her hand, he says. “If you don’t plan for these, your loved ones may lose access…. If you care what happens to your digital belongings after you die — your photographs, your home movies, your e-mails — you have to plan.”

And certain digital assets have monetary value both today and in the future, such as domain names or a blog that generates income. Avatars or virtual property in online games such as World of Warcraft or Second Life also have quantifiable value, Beyer notes.

Digital assets — personal iTunes music libraries and Kindle books, for example — are in a different class, however. If you have, say, a large digital book collection, the transfer of usage rights is limited and closely monitored. “You don’t technically own those,” says Beyer. “You have a license to use them. That license dies with you. But if those are owned in a trust, your beneficiaries may be able to continue to use them.”

Frequent flyer miles or hotel points, while also part of your digital profile, present some tricky questions, too. These assets are governed by a contract with the company, according to Wharton’s Matwyshyn. Most contracts specify that the miles and points are personal and cannot be shared unless given explicit permission from the company. “It is possible that airlines and hotels would be willing to entertain a request to transfer, but they have a unilateral right to say: ‘I’m sorry for your loss but these points are no longer valid,’” she notes.

“If you care what happens to your digital belongings after you die — your photographs, your home movies, your e-mails — you have to plan.”

A growing number of companies are finding ways to monetize post-mortem digital effects. After all, just because most of our digital content is sentimental, it does not mean it is of no economic value. “Quite the opposite, actually,” says Pinar Yildirim, a professor of marketing at Wharton. “Say you upload photos today, and 100 years later, long after you are gone, your great-great grandson wants to have them. It represents an opportunity for any company that may want to justify its investment in storing that digital content.”

Some companies, including E-Z Safe, Estate++ and SecureSafe, act as repositories for your digital accounts. They serve as virtual safe deposit boxes, holding onto your usernames and passwords. When you die, that information gets forwarded to the person or people you specify.

“After a loved one dies, oftentimes a family member or friend needs to get access to their digital material — their social media, their e-mails or they just want to pay some bills from an online account,” says Texas Tech’s Beyer, who is a national expert in estate and trust issues. “But without planning, companies may take weeks, months or even years before they grant access.”

Other companies assist in efforts to locate digital assets of the deceased. Webcease, for instance, helps people find keepsake photographs on sites like Snapfish or Shutterfly; accumulated earned miles or points on travel, hotel or airline loyalty programs; personal interactions on social and professional sites like Facebook and LinkedIn, and personal accounts on sites like Amazon, PayPal, Netflix or eBay. “They are essentially search firms that will search all over the Internet to find what’s out there,” Beyer notes.

Other businesses in this market specialize in helping family members gain access to the computers and accounts of people who have died, according to John Sileo, a Denver-based expert on identity theft and privacy. “Say your spouse or parent passed away and you need to get into his or her account, but the company won’t let you because you weren’t listed on the account, or you didn’t have power of attorney. One of your options is to enlist the help of a so-called ’ethical hacker,’” who could infiltrate accounts you have a legitimate right to, says Sileo. “There are people who are making a lot of money doing this behind the scenes.”

But these are precisely the scenarios that Guttentag, the nonagenarian Mortgage Professor, hopes to avoid. This is why he is doing his best to organize his digital effects now. “I don’t want to leave a mess for my wife and children to clean up when I die,” he says. “If that were to happen tomorrow, that pledge would not be fully realized because of the still unfinished business I haven’t yet gotten around to. But 2014 is the year.”

Digital death is still a problem. A widow’s battle to access her husband’s Apple account

Wills, Trusts & Estates Prof Blog

March 22, 2014July 29, 2014 Eleanore Leave a comment

As I have previously discussed, even people who believe they have a comprehensive estate plan may have overlooked what happens to their digital assets when they die. The idea is to address digital assets in your existing estate plan. Attorney coach, James Lamm, is teaching attorneys how to integrate specifics of digital estate planning.

Many people possess digital assets that may be of great value to them. However, the value of web domains, photos, videos, email, and social-media accounts may be lost if the owner does not take proper legal steps ahead of time. Digital estate planning is more complicated than traditional estate planning because the owner of assets is tasked with making sure to leave access to the heir. However, these sites may be password protected, encrypted, and governed by privacy laws. Lamm suggests some first steps that would help in the digital estate -planning process.

Go through a test run and ask yourself if you were incapacitated today would your loved ones be able to gain access to your digital assets? Who would you want to have access?
Keep a record of all of the things in your digital inventory with the user name and passwords.
Keep a back up of your digital asset information.
Reduce your plan to writing.

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Wills, Trusts & Estates Prof Blog

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