Bill Addressing Witness Signatures Moves Out of Committee

Legislation from Rep. William Lamberth, R-Cottontown, permitting until July 1, 2016 the combined signatures of witnesses and those executing a self-proving affidavit to validate a testators signature moved out of the House Judiciary Committee today. The bill (HB 1472) is intended to address a situation like that addressed in the Court of Appeals case IN RE Estate of Bill Morris.

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News About Section Members

Matthew Buyer recently moved to Pinnacle Financial Partners to open the Memphis Trust Department. In addition, he will continue to serve as an adjunct in the MBA program at Webster University in Millington. He also recently completed 32 years of reserve duty with the Army National Guard.

Jeff Carson of Franklin has been named vice chair of the TBA Estate Planning and Probate Section. He will assume the chairmanship for the 2016-2017 bar year.

Jennifer Exum has recently been named Of Counsel for Chambliss Law in Chattanooga.

Angelia Nystrom of Knoxville has been named Director of Specialty Programs for the University of Tennessee Institute of Agriculture.

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LAET Partners with Attorney to Offer Free Estate Planning

Attorney David Coates, of the Law Offices of David Coates, has partnered with Habitat for Humanity and Legal Aid of East Tennessee to offer free estate planning this Saturday to every Habitat for Humanity of Greater Chattanooga Area homeowner in the Chattanooga area. “Now that these families are homeowners, it is such a blessing to see them able to meet with a lawyer to help protect their homes,” Cheryl Marsh, Director of Family Services, said. The clinic, along with a free legal clinic, will be held in the Chattanooga Housing Authority’s multipurpose room located at 801 N. Holtzclaw Ave.

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Pending Legislation for Digital Assets

By Donald Farinato, Executive Council Member, TBA Estate Planning and Probate Section

January brings the commencement of a new legislative session, and with it, the continued contemplation of Senate Bill 0326 (SB0326), which is legislation carried over from the last session. If enacted, SB0326 would provide guidance and authority for executors, conservators and other fiduciaries regarding access to digital assets of a deceased or incapacitated individual. 

The National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated the Uniform Fiduciary Access to Digital Assets Act (UFADAA) in final form during the summer of 2014. UFADAA proposed a uniform system for all fiduciaries, including personal representatives, trustees, conservators and attorneys-in-fact, to access digital assets.On Feb. 3, 2015, SB0326 introduced Tennessee’s version of UFADAA (TUFADAA). Initially, UFADAA was well-received by various states nationwide, and it appeared that Tennessee fiduciaries would be able to rely upon TUFADAA.  However, concerns from various sectors of the technology industry stalled the initial nationwide momentum, and various states postponed pending legislation. In Tennessee, on April 8, 2015, action on TUFADAA was deferred to Jan. 12, 2016. 

In response to the concerns raised by various technology companies, late in 2015 NCCUSL developed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) to replace UFADAA. An amendment to SB0326 was added to integrate the changes included in RUFADAA in the Tennessee bill. SB0326 continues to be contemplated, and if enacted, would provide a framework for individuals to plan for their digital assets upon their incapacity or death. 

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Sensitizing Clients About Digital Assets

By Donald Farinato, Executive Council Member, TBA Estate Planning and Probate Section

Most of my clients have some type of “digital life” through which they chronicle their vacations on Facebook, capture pictures of a child’s soccer game on their cell phone, automated bill paying through online banking, and otherwise utilize their digital assets. While digital assets are important to many clients, few undertake efforts to protect these assets. Without proper planning, digital assets are subject to loss. 

Digital assets are those assets that exist only in electronic form. Examples include PayPal accounts, LinkedIn profiles and emails. Generally speaking, it is easy for a client to utilize and access digital assets.  However, it can be problematic for others to access a client’s digital assets should the client die or become incapacitated. There are a number of barriers to others accessing a client’s digital assets, including federal legislation, such as the Stored Communications Act, and Tennessee statutes, such as the Tennessee Personal and Commercial Computer Act of 2003. In addition to both federal and state laws, terms of service agreements, which govern the terms of use of electronic accounts, can restrict access to digital assets. 

Because of the potential pitfalls, I endeavor to inform clients about digital assets early in the estate planning process. I want clients to think about their digital assets in terms of three categories: “practical” digital assets, “sentimental” digital assets and “valuable” digital assets. 

“Practical” digital assets include investment accounts solely with an online presence and automated bill paying services.  Many of my clients utilize these types of services, and their loved ones would be inconvenienced if precluded from accessing the accounts.

“Sentimental” digital assets include pictures uploaded on Shutterfly and tweets posted on a Twitter account.  Planning for the protection of this type of digital asset can be important since the electronic account may contain the only pictures of a special event, such as a child’s birthday party.

“Valuable” digital assets tend to be less common and can include well-developed blogs and valuable domain names. For example, a client may have started an online community to discuss Corvettes purely as a hobby, but after the community became quite active, companies selling specialty automotive parts were willing to pay for advertising in the online community. Without proper planning, an otherwise valuable asset could be lost or experience a significant decrease in value. 

I utilize an Estate Planning Questionnaire (EPQ) that I ask all estate planning clients to complete. The EPQ requests that the client provide standard estate planning information, such as financial information and family relationships. About a year ago, I added a section dealing with digital assets on my EPQ, asking the following three questions:

1.  Do you conduct any important transactions electronically (e.g.: paying utilities, monitoring investments)?  If so, please provide additional details.

2.  Do you have personal electronic accounts that are important to you (e.g.: Facebook, Twitter, pictures stored on cell phone)?  If so, please provide additional details.

3.  Do you own or have an interest in any digital assets that are valuable (e.g.: domain names, blogs)?  If so, please provide additional details.

The three questions on the EPQ help sensitize clients about the need to consider digital assets as part of their planning. Because there are not yet sufficient laws in place to provide for the handling of digital assets upon death or incapacity, clients are best served by contemplating early on how they want their digital assets to be handled. Potential decisions include whether to engage in self-help, such as saving pictures from a Facebook account to a computer to make sure beneficiaries have unfettered access. 

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Vanderbilt Law Professor Elected to Estate Planning Hall of Fame

Jeffrey Schoenblum, Centennial Professor of Law at Vanderbilt, has been elected to the Estate Planning Hall of Fame. The award is given annually by the National Association of Estate Planners & Councils in recognition of significant and outstanding lifetime achievements and contributions to the practice and profession of estate planning. Schoenblum has taught trust and estate law at Vanderbilt Law School since 1977.

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Columns: Evolving Legal Markets, Robin Williams, Banking and Fred Thompson

In this issue of the Tennessee Bar Journal, TBA President Bill Harbison writes about the "disruptive changes" that are occurring in the delivery of legal services. Columnist Eddy Smith details the genius of Robin Williams' estate plan and Kathryn Reed Edge covers banking and the U.S. Supreme Court. In his column, Bill Haltom remembers Sen. Fred Thompson and his tremendous contributions to the law and history.

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Memphis City Employees Suing Over Pension Cuts

Unions representing Memphis city employees filed a lawsuit asking a judge to stop planned pension cuts for newer employees, WREG reports. "The City Council just arbitrarily selected 7 1/2 years and there was basis for that decision other than just pick a number," Danny Todd with the International Firefighters Association said. The pension cuts are expected to take place next July.

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Will and Estate Advice Seminar This Weekend in Knoxville

The Knoxville Bar Association will share free will and estate advice at its LawTalk seminar from 9 a.m. – 1 p.m. Friday at the John T. O’Connor Senior Citizens Center, 611 Winona St., and Saturday at Fellowship Church, 8000 Middlebrook Pike. Read more from the Knoxville News Sentinel.

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State Officials Support 'Celebrate Pro Bono Month'

State officials are encouraging Tennesseans to learn more about their legal options this month, NewsChannel 9 reports. The Tennessee Department of Commerce and Insurance's Division of Consumer Affairs reminds everyone that National Celebrate Pro Bono Week is being observed Oct. 25-31 across the nation. The department says that the week is a good time for people to "educate themselves when it comes to their legal options, which could be a title search, estate planning or a legal defense." In Tennessee more than 50 events are happening across the state during October. Now in its seventh year, the Tennessee initiative brings together bar associations, law schools, law firms, legal services providers and individual lawyers to offer free services to those unable to afford a lawyer. Learn more about the 2015 Celebrate Pro Bono Initiative.

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Opinion: Bitcoin Poses Unique Challenges for Lawyers

Because of their unique attributes, bitcoin and other virtual currencies present challenges for lawyers who wish to locate and collect against assets, a contributor to the Nashville Business Journal argues. Andrew Hinkes with the Florida business law firm Berger Singerman says the movement of money “almost instantly, without payment of fees and with minimal records” seriously complicates the tracing of assets. He encourages lawyers to understand how these systems work.

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2 Legal Aid Clinics Set for Oct. 27

Legal aid groups will hold two clinics on Oct. 27. The first, sponsored by Legal Aid of East Tennessee, will take place in Jonesborough from 2 to 4 p.m. at the Jonesborough Senior Center. The focus will be on estate planning. Contact Christy Harris for more information. The second is a general legal advice clinic in Jackson. That event will take place from 9 to 11 a.m. at the Regional Inter-Faith Association. Contact Kathryn Tucker for details. See the full list of Celebrate Pro Bono Month events.

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Weekend Clinics Planned for Oct. 3, 10

Celebrate Pro Bono Month events are planned for the next two weekends in Knoxville and Memphis. Legal Aid of East Tennessee will hold a legal advice clinic Saturday from 9 a.m. to noon at its Knoxville office. Call (865) 637-0484 to learn more. On Oct. 10, the TBA Young Lawyers Division will host a Wills for Heroes Clinic in Memphis. Contact Chasity Grice, (901) 761-3140, to get involved. See the full list of Celebrate Pro Bono Month events.

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50 Years of Travel, Plus Columns on Wills, Banking, Uber

To celebrate the Journal’s 50th birthday, travel back through some of the exotic trips the TBA has taken over the years -- Rome, Mexico, the Caribbean and more. This month, columnist Eddy Smith asks (and answers) the question, "Strictly Speaking, When Is a Will Not a Will?" and in her column, Kathryn Reed Edge gives an overview of interest rates. Humor columnist Bill Haltom suggests a slight career concept change … to Uber Attorney. See the entire August Journal here.

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Learn More About the Post Tanco World

The outcome of the historical case Tanco v. Haslam will continue to have a significant impact on several aspects of the law. Join your colleagues on Sept. 18 for the first annual LGBT Law Forum to discuss how the case will impact family law, estate planning, real estate and health care practices. And in case you missed it, the TBA's one-hour webcast on marriage equality covers the basics of the case.

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Community Forum Explores Social Security Issues

The year’s first Community Legal Forum – a joint initiative of the Bradley County Bar Association, the Bradley Governmental Law Library Commission and the Cleveland/Bradley Public Library – will take place June 2 at 7:30 p.m. at the library. Cleveland attorney Jack Tapper will lead the session, which is free and open to the public. The program will look at the basics of processing Social Security Disability and Supplemental Security Income claims as well as ways to increase Social Security benefits for married, divorced and widowed spouses, the Cleveland Banner reports.

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Learn More About Pending Decision on Marriage Equality

Join us in person or via webcast on July 2 for a TBA CLE on the Tanco v. Haslam marriage recognition challenge. The presentation will include a discussion on how the U.S. Supreme Court's decision will affect Tennessee, as well as an overview of the background, parties and issues involved in the case. Register for the onsite program or for the webcast.

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B.B. King Family Loses Battle for Control

Family members of Blues legend B.B. King lost a bid to take control of their ailing father’s affairs in a Las Vegas courtroom on Thursday. Three of King’s 11 surviving children asked the court to take control from King’s longtime business manager because they said he was stealing money and neglecting King’s medical care. The judge ruled there was no evidence to back up the claims, WRCB-TV reports.

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TBJ Includes Fiduciaries, Constitutional Convention of 1870

In the May issue, Nashville lawyer Scott Pilkinton examines the question of whether or not a felon can be a fiduciary. Turns out, it’s not an easy answer. Chattanooga lawyer and former TBA President Sam Elliott looks at "the two great issues" of the state's Constitutional Convention of 1870 and how it is still relevant today.

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Hooker Weighs in as Committee Considers 'Death with Dignity'

This summer, state lawmakers will gather to discuss the controversial issue of death with dignity and whether or not those with a terminal illness have the right to decide when to die. Now John Jay Hooker, who has been diagnosed with terminal melanoma, is championing this cause and fighting for the right to die with dignity. “I think if a person is suffering wants to leave this earth that the government’s got no business to tell them that they got to suffer and stay,” he told WKRN.

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Alleged Victim On Stand in Lawyers' Extortion Trial

Defense attorneys for two lawyers charged with extortion began grilling the alleged victim on cross examination in Clarksville Wednesday morning, the Leaf Chronicle reports. Attorneys Carrie Gasaway and Fletcher Long are each charged with one count of extortion after allegedly pressuring a client, Michelle Langlois, to pay money she claims she didn't owe them, and then having her arrested. The lawyers were charged after a two-year review by the Tennessee Bureau of Investigation.

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Steen: Bridge the Generation Gap With Clear Communication

In his Tennessee Bar Journal column about how different generations communicate, TBA President Jonathan Steen points out how important good communication skills are -- and why sending a text late at night to a senior partner may not be the best way to make contact. In the April issue's other columns, Eddy Smith covers IRA beneficiaries and creditor protection; Katy Edge explains how banking works for legal marijuana sales; and Bill Haltom comments on Justice Ginsburg’s recent nap before the president’s speech.

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Nashville Lawyers Form New Firm

Four Nashville lawyers have joined together to form the law firm of Surber, Asher, Surber & Moushon. The firm will focus on personal injury, business and construction law, professional liability and insurance defense, and probate and conservatorship law. Joel Surber, Garrett Asher and Matt Moushon were formerly partners at Parker, Lawrence, Cantrell & Smith. Jennifer Surber formerly served as counsel to the Davidson County Probate Court and as Special Probate Master for the Seventh Circuit Court.

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House Panel Approves Digital Assets Bill

A state House subcommittee has approved legislation setting rules for access to digital information after death or disability, Humphrey on the Hill reports. The “Uniform Fiduciary Access to Digital Assets Act” has drawn opposition from representatives of Facebook, Google and Amazon on the grounds that it would declare company policies void if they conflict with state law. The bill gives the legal representative of a deceased or incapacitated person authority to decide how pictures and postings on a site will be disposed of, even though the user once gave the site the right to control such things. TBA Executive Director Allan Ramsaur said many social media sites put such provisions in the fine print of their sign-up contracts, which has led to unfortunate situations. Knoxnews has the story.

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KBA Offers Community Law School This Weekend

The Knoxville Bar Association will offer its annual Community Law School this Friday at the O’Connor Senior Center, 611 Winona St., and on Saturday at Fellowship Church, 8000 Middlebrook Pike. On each day, volunteer lawyers will present a session on wills and estate planning from 9-10:45 a.m. and a session on consumer rights and responsibilities from 11 a.m. to 12:45 p.m. Pre-registration is not required but appreciated. Call (865) 522-6522 or register online for Friday or for Saturday's sessions.

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