Estate Planning Brownbag Series: Introduction to the Uniform Fiduciary Access to Digital Assets Act

Program Date: Friday, September 25, 2015

Panelist: Colin Korzec, Esq., Managing Director and Estate Settlement National Executive, U.S. Trust, Bank of America Private Wealth Management

Program Chairs: Kerry L. Spindler, Goulston & Storrs PC  and Sara Goldman Curley, Nutter McClennen & Fish LLP, co-Chairs of the Trusts & Estates Section’s Estate Planning Brownbag Series

Materials:  To view the program materials, click here.

Additional Resources: A link to the Revised Uniform Fiduciary Access to Digital Assets Act can be found here.

Summary of Program Topic: As the number of digital assets held by the average person increases, questions surrounding the disposition of these assets upon death or incapacity are becoming more common.  Few laws exist on the rights of fiduciaries over digital assets and few individuals consider the fate of their online presences once they are no longer able to manage their digital assets.

The situation regarding fiduciaries’ access to digital assets is unclear, and even fiduciaries who believe they have been granted access to digital assets may inadvertently run afoul of uncoordinated probate, privacy and computer hacking laws.  To the extent that there is existing legislation, such laws are disparate and differ with respect to the types of assets covered, the rights of the fiduciary, the category of fiduciary covered, and whether death or incapacity are covered.

The Uniform Law Commission has promulgated the Uniform Fiduciary Access to Digital Assets Act, which is intended to create a uniform approach among states so as to increase certainty and predictability for courts, account holders, fiduciaries and internet service providers.  Many states, including Massachusetts, are considering adoption of the uniform statute.  This program discussed the substance, pros, cons, evolution and controversies surrounding the statute.


Pfannenstiehl v. Pfannenstiehl

By: Jillian B. Hirsch, Leiha Macauley, and Darian M. Butcher, Day Pitney LLP

On August 27, 2015, the Massachusetts Appeals Court held in Pfannenstiehl v. Pfannenstiehl, Nos. 13-P-906, 13-P-686, & 13-P-1385, 2015 Mass App. LEXIS 123, that a husband’s interest in an irrevocable trust with an ascertainable standard is a “vested beneficial interest subject to inclusion in the marital estate.” This is a significant decision that could impact the way in which trusts and estates practitioners in Massachusetts draft estate plans for clients concerned about divorce protection.  To read full Alert, click here.

Heckerling 2015 Recap

ACTEC has posted daily Reports containing highlights of the proceedings of the 49th Annual Philip E. Heckerling Institute on Estate Planning that was held on January 12-16, 2015 at the Orlando World Center Marriott Resort and Convention Center in Florida.

Below please find a link to each of ACTEC’s posts:


Fundamentals Program on Basis and 2014 Recent Developments

UFADAA, Crafting a 21st Century Estate and Gift Tax, Question and Answer Panel, Fundamentals of Income Taxation of Estates and Trusts

Trust Design and IRS litigation issues

Portability, Planning for the 2%, and SCINs and Private Annuities

Portability, SCINs and Annuities, Fiduciary Cases, and Asset Protection

Curing Estate Plans that no Longer make Sense in Light of ATRA 2012, Family Rivalries in Family Owned Businesses, and Tax Administration and Procedural Rules

Tax & Procedural Rules, Philanthropic Imperative, Tax Reduction Strategies, and Trust Designs

Keep It In The Family, Life Insurance, Digital Assets, and Restricted Charitable Gifts

POAs, Split Interest Trusts, Trust Protectors, and Ethics of Being a Fiduciary

Retirement Benefits, Curing Obsolete Estate Plans, Powers of Attorney, Trust Protectors for SNITs

International Developments, Litigation, Family Governance, and Split Interest Trusts Created by Entities

Ethic, Fiduciaries with Businesses, Florida Law, and Guardianships

The New Normal, Planning for Life After Death, and Our Return to What Really Matters

Vendors of interest that were present in the Exhibition and Summary of Tech Tidbits

Materials from December Brown Bag Lunch

Please follow the link below to obtain the materials from the December Brown Bag lunch on “Planning for Beneficiaries with Special Needs.”  At this program attendees learned about special needs trusts, and the estate planning involved for these beneficiaries.  Topics presented on by Rebecca Benson, of Margolis & Bloom included maximizing quality of life and preserving eligibility for public benefit programs.

Special Needs Trusts materials

Materials from November Brown Bag Lunch

Please follow the link below to obtain the materials from the November Brown Bag lunch on “Planning from Abroad:  Inbound Planning Strategies.”  At this program Brian William Monnich of Choate, Hall & Stuart LLP  provided practical strategies for advising non-US persons who plan to become residents and/or domiciled in the US for tax purposes, or wish to transfer wealth to US family members.  Attendees learned how to determine how and when a person becomes resident in the US, various pre-immigration planning techniques, and strategies for estate planning across borders.

Planning From Abroad materials




By:  Kerry Reilly, Esq.

Estate of James A. Elkins, Jr. v. Commissioner

13-60472 (5th Cir.)

Filed: September 15, 2014


James A. Elkins, Jr. (“Decedent”), a Texas resident, owned a fractional share of 64 pieces of modern art at the time of his death.  Decedent owned 50% of the interest in two pieces of art and 73.055% interest in the other 62 pieces.  The Decedent’s children (“Petitioners”) held the remaining interests in the artworks and also served as the Executors of his estate.  Two of the art pieces were subject to a “lease agreement” whereby no interest in the works of art could be disposed of without the assent of all co-owners and no co-owner could transfer or assign his/her “rights, duties and obligations” without the prior agreement of all other co-owners.  With respect to the remaining pieces, a “Co-Tenants Agreement” governed each.  That agreement contained similar limitations.

In determining the estate taxes due upon the death of Mr. Elkins, the Petitioners retained Sotheby’s Inc. to determine value of the individual pieces and the Decedent’s pro-rata share of the artworks and Deloitte, LLP to determine the appropriate discount for lack of control and marketability.

Upon the timely filing for the Decedent’s Form 706, the Internal Revenue Service refused to allow any discount for the works of art and assessed a penalty against the Decedent’s estate of $9,068,266.    The Decedent’s estate challenged this penalty.

Tax Court Proceedings:

In the Tax Court proceedings, the Petitioners supplied evidence from three experts in addition to the Sotheby’s and Deloitte reports – a Texas lawyer, who was an expert on the time and cost associated with litigating restraints on alienation, an expert on valuation of fractional interests in property and an expert in the art market.

The Commissioner supplied one (admitted) rebuttal witness who claimed that “no recognized, [or established] market” existed for partial interests in works of art. In refusing to deviate from the “no discount” position the Commissioner supplied no evidence as to what an acceptable discount might be in the event the Tax Court disagreed.

The Tax Court rejected the Commissioner’s position that no discount was applicable under the “willing buyer/seller” test, however it also rejected the valuations provided by the Petitioners and applied its own discount of 10% for each work of art and assessed the related penalty.  The Decedent’s estate appealed.


Is the Decedent’s estate taxable on the undiscounted value of the fair market value of the artworks or the discounted value; and if it is the discounted value which discounted value applies (1) the Tax Court’s 10% or (2) the percentages supplied by the Decedent’s estate?

Discussion and Decision:

The Fifth Circuit affirmed the Tax Court’s ruling with respect to the rejection of the Commissioner’s argument as to the “zero discount” because a “willing buyer and seller” would take into account the various restrictions on the artwork.    The Fifth Circuit strongly disagreed with the Tax Court’s application of its own unsupported discount amount.

In this concisely written opinion, the Court spent a fair amount of time discussing burdens of proof and evidentiary standards.  The Court noted that the “uncontradicted, unimpeached and eminently credible” nature of the Petitioner’s evidence and the complete lack of evidence from the Commissioner should have resulted in a decision for the Decedent’s estate with respect to the value of the discounts.

The Court noted that the “reversible error” was mainly found Tax Court’s analysis of the “willing buyer/seller” test.  The Court took issue with the Tax Court’s extensive focus on the Decedent’s children as the remaining owners, its insufficient attention to the “willing buyer” and the assumption that the “buyer” would immediately flip his/her interest back to the children at a market rate.  The Court noted that the Decedent’s children are “sophisticated, determined and financially independent,” and that they had rejected entirely the thought of ever selling their interests in the artwork, or the artwork itself.    The Court further notes that in the ‘absence of an established market,’ with the subjective characteristics of the other owners and the time and money it would cost a prospective “willing buyer” to overcome the legal restraints on the artwork the “willing buyer” would likely demand further discounting.

The Court (1) affirmed the Tax Court’s rejection of the “no fractional ownership discount” assertion, (2) affirmed the Tax Court’s holding that the Decedent’s estate may apply fractional-ownership discounts, (3) reversed the Tax Court’s holding that 10% was the appropriate discount, (4) held that the appropriate discounts were those supplied by the estate of the Decedent and (5) rendered judgment in favor of the Petitioners for $14,359,508.21 plus statutory interest.


The Court also noted, in a footnote, that the Commissioner’s rebuttal witness actually weakened the Commissioner’s argument in that by stating that “no recognized market” existed for fractional interests in artwork, the discounts applied to the various pieces should have been greater.