A new legal issue in estate planning is how to handle digital assets during one’s lifetime, and how to pass on these digital assets to future generations.
Digital assets can include a variety of things, but in this article, we will focus on cryptocurrency. Cryptocurrency can most easily be defined as a virtual currency that uses a heightened security technology called blockchain. Due to their intangibility, cryptocurrencies are stored and traded electronically. We are seeing more clients and estates with investments in cryptocurrency, such as Bitcoin. As a reference for readers who are new to cryptocurrency, one Bitcoin was valued at less than one cent in 2010, and as of the writing of this article, one Bitcoin is valued at $104,620.10. Additionally, the full market cap of all available bitcoin is a staggering $2.06 trillion. The rise in the value of cryptocurrency and a newfound public investing interest presents new legal challenges when crafting the best estate plan for each client.
One of the most important goals in estate planning is making it as easy as possible for your loved ones to access and administer your estate. If a client currently holds or has plans to invest in cryptocurrency, it is crucial to obtain information on any cryptocurrency held by the individual and to include language or proper directions in the estate planning documents that permit fiduciaries to access, retain, and manage the cryptocurrency without limitations or liability. It is important to provide these powers to the fiduciaries in an estate or trust, because even if the decedent provides the fiduciary with their cryptocurrency passcode during their lifetime, the fiduciary’s use of the passcode after death — without the proper permissions in the decedent’s estate planning documents and related laws — could cause the fiduciary to violate federal or state privacy laws, terms of service agreements, or computer fraud and data protection laws.
For individuals with Trusts that plan on or are currently holding cryptocurrency as an investment, your Trust document should give authority to the Trustee to handle the cryptocurrency, even if the owner is the Trustee. Many trusts or wills created more than five years ago might not include the necessary language to properly and legally manage cryptocurrency. At a minimum, a cryptocurrency investor who wants to establish a trust holding cryptocurrency should release a trustee from any duty to diversify and provide the trustee with the necessary indemnification. However, as noted earlier, is important to ensure that doing so does not violate any applicable laws or terms of service agreements.
It may be that a specific gift of the cryptocurrency is contained within the Will itself, or a Memorandum is prepared to sit alongside the Will, detailing instructions on how to access the funds or the private key itself. It is generally not recommended that an individual share his or her passcode with others for security reasons, but once a passcode is lost, it can be virtually impossible to recover. Leaving cryptocurrency to your loved ones after your death and avoiding probate requires more planning than traditional assets. For example, Coinbase, a popular cryptocurrency wallet, does not support naming a beneficiary for individual accounts and they require estate planning documents or proper probate court documents to transfer a Coinbase account. With proper estate planning, you can simplify the process for your beneficiaries and ensure that they inherit your cryptocurrency while avoiding unnecessary delay or expense.
Wesley W. Harris is an associate attorney at Farrar & Williams, PLLC, a law firm limiting its practice to trusts, estate planning, and elder law, located at 1720 Higdon Ferry Road, Suite 202, Hot Springs, Arkansas, and can be contacted at 501-525-4401 or by email at [email protected]. The firm’s website is farrarwilliams.com.