New York Estate Planning Lawyer Blog

The New York Department of Taxation and Finance (‘DTF”) recognizes the Office of Real Property Tax Services (“ORPTS”) and Appraisal Standards Board (“ASB”) definition of  Uniform Standards of

Professional Appraisal Practice (“USPAP”) guidelines

for the appraiser inspection process requiring licensed appraisers identify 1) the property to be inspected; 2) the purpose and intended use of the assessment report; 3) the data collection and analysis process; 4) conditions or limitations to valuation; and 5) the effective date of the valuation. Property rights and interests are a key rule element in the rules to professional appraiser valuation of real property in the state.

Estate planning involves asset valuation for purposes of taxation, financial and investment planning, and future distribution to heirs and beneficiaries of record. New York Department of Taxation and Finance (“DTF”) guidelines for ad valorem real property taxation of estates is defined by the standards of the Office of Real Property Tax Services (“ORPTS”). The Uniform Standards of Professional Appraisal Practice (“USPAP”) is basis to New York guidelines for property valuation, including the statistical techniques and professional appraisal practices. The USPAP is informed by both federal and state laws; as well as precedent setting case record; and rules and regulations of the ORPTS. Estate planners should be aware of the rules to ethical best practice when working with an appraiser during the valuation process.

Ethical Standards of Valuation

The New York ethical standards of valuation as described by the USPAP, are divided into four (4) four categories best practices:

High wealth investors can avoid federal estate taxes on digital assets with the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) since 2015. Estate planners know that the end-of-life planning of trust and estate assets may include a whole host of digital assets, including financial assets such as cryptocurrency, as well as nonfinancial assets like business websites, digital storefronts, payment gateways, enterprise data, cloud storage repositories, contact lists, social media, subscription accounts, as even digital medical images and records.

Terms of Service Agreements

Legal consideration of terms of service agreements exhibits statutory provisions limiting access to designated user account access. Legal issues arise when the owner of a digital account has died or is otherwise incapacitated. Without the capacity to log into an account, an estate executor is posed with a challenge that has the potential to result in probate court intervention. If the owner of an account mentioned in a will or last testamentary documents of an estate is deceased, the account providers are under no binding legal obligation to allow others to access those digital accounts held in the decedent’s name.

Celebrity assets left without a will or formal testamentary estate document are increasingly of interest to both estate and intellectual property law practitioners. Example is the estate of the late Singer, Aretha Franklin. Otherwise known as the “Queen of Soul,” the estimated $80 million estate involving the value of the artist’s artistic copyright and the trademark of her celebrity, has been embroiled in ongoing legal dispute over permissions to her name, work, image, and likeness within commercial publicity. Of the estate’s intellectual property which has been contested in litigation over publicity rights, a significant portion of those assets has been recently subject to taxation.  

Merchandising Rights of Publicity

Trademark and copyright law allow for estate administration of port-mortem rights to publicity associated with intellectual property assets. For purposes of valuation, the image, likeness, or representation of an artist or celebrity is an asset. Merchandising rights entitle a copyright or trademark licensee to derive future value from those assets, based on strategic performance estimates of a publicity campaign. Celebrity publicity valuation is complicated by publicity placement, as well as the cost of trademark permissions. Request for use of a copyright or trademark for publicity requires legal agreement. Terms and conditions to publicity agreements generally include a royalty clause, specifying a percentage based on an estimate of the future streams of income to flow from the use of a celebrity’s work or image.

September 28, 2018, the estate of Cuban American Artist, Ana Mendieta filed suit against Amazon Studios for copyright infringement of her work in a Seattle federal court, Mendieta Estate v. Amazon Studios, Case No. 2:18-cv-01426. The dispute claims that the Amazon’s cinematic production, Suspiria directed by Luca Guadagnino, a remake of the 1977 horror film of the same directed by Dario Argento, extrapolates its content from Mendieta’s work. Guadagnino the director of award-winning film Call Me by Your Name, 2017, clarified his interest in Mendieta as inspiration, citing feminist artists in development of his film productions. The case exhibits how estate fiduciaries can protect copyrights to artistic assets under federal law.

Cease and Desist

The estate claims two of the scenes from the movie derive narrative from Mendieta’s photographic work, Rape Scene, 1973, and her performance Untitled: Silueta Series, Mexico, 1978. Amazon was served with a cease and desist letter in July of this year. Damages for the use of Mendieta’s work without express consent of the estate were demanded. Amazon’s response to letter has been to remove the contested scenes from the movie’s trailers.

The disposition of digital assets after death has increasingly become a question of clients planning an estate. While some digital accounts hold cryptocurrencies or payment gateway assets, others are nonfinancial, yet equally or more valuable in terms of worth to beneficiaries. Accounts including online bank or brokerage accounts and other locked digital assets should be given special attention to ensure transferability of those assets to heirs or beneficiaries without probate at the time of an estate holder’s incapacitation or death. Since enactment of the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”)  of 2015, an estate advisor can assist a client in the creation of a directive with express instructions, identifying a representative responsible for their user access credentials once they are gone.

The Role of an Estate Planning Advisor

Estate planning advisors can assist a client in planning for transfer and administration of digital estate assets. Like traditional estate planning, an advisor, usually a licensed attorney, will provide legal advice and drafting of the necessary will or testamentary documents during the formation of an estate or trust. Under the RUFADAA, and estate planning advisor can assist a client in the assignment of a representative to administer their digital assets at time of incapacitation or death.

Since ratification of the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) in 2015, the guidelines for third-party access of digital assets of deceased or incapacitated parties has been refined to include guidelines to estate fiduciaries (i.e. trustees, executors, or other agents) and court-appointed conservators or guardians of protected persons’ estates with power of attorney appointment to gain lawful access to a named individual’s digital accounts. RUFADAA provides instructions for third-party treatment of digital assets in a 3-tier system:

Tier 1: Custodian Online Tool

RUFADAA provisions allow for custodian online tool administration of account management after an individual with designated user access credentials is deceased or incapacitation. For example, Facebook Legacy Contact and Google Inactive Account Manager offer terms of service agreement instructions for account modification or deletion where