Cryptocurrency (e.g., Bitcoin, Litecoin, Cardano, Ethereum, Ripple (XRP), etc.) is increasing in popularity as a form of a financial investment and investors are finding high returns. Consequently, cryptocurrency investors are seeking to pass these digital assets on to beneficiaries after death. The very features that make crypto attractive – anonymity and decentralization – can also increase the risk of your fiduciaries losing access to your crypto holdings. You can include your cryptocurrency assets in a will, but before you do, we have some suggestions for you.
Cryptocurrency Assets Are Different Than Traditional Assets
Despite its name, cryptocurrency isn’t treated the same as your bank account, insurance benefits, or investment assets. Pennsylvania and federal law consider cryptocurrency personal property rather than currency (i.e. money or “flat” money in the crypto world) . This affects the way it is treated -- and taxed -- after you die.
Why does it matter whether your crypto is considered personal property? Standard language in wills and trusts might designate certain personal property for specific people – for example, you might specify that your piano should be given to your sister, or your jewelry should be given to your daughter. It is also common to have catchall language that gives all of your personal property to a specific person. That language will automatically include your cryptocurrency (because it is considered personal property), even if you only meant it to include your household furnishings.
How You Store Your Private Key is Important
Cryptocurrency is stored in a digital ledger. The ledger is accessed with a private key, which is stored in either an online (hot storage) wallet or an offline (cold storage) wallet. Depending on how your private key is stored, and unless you specifically direct who should receive your Bitcoin, Etherium, or Litecoin account in your Will, it may not pass to whom you intend:
If you store that key online (i.e. using a password management app), this “hot storage” will be considered intangible personal property, like a copyright, patent, or account receivable.
If you store the private key offline (i.e. on a USB device or hard drive), this “cold storage” is instead tangible personal property, the same as your books or shoes.
Virtually every will has a provision directing the distribution of your personal property. If you acquired cryptocurrency after you Will was completed, it would be a good idea to have an estate planning attorney experienced in cryptocurrency review your Will to determine whether it is adequate for your newly acquired digital assets.
Your Crypto Could Be Worth Zero in an Instant
Digital wallets for crypto currency don’t have account names or titles. They aren’t registered with a bank or financial institution. Access to digital wallets is controlled by a private key. A digital wallet worth $100,000 (or any other number) without the private key is useless. There is no “change password” option, no 1-800 number to call, and no recourse against a digital currency exchange to recover a lost key. Sudden death or incapacity without proper planning can render an investor’s digital wealth WORTHLESS instantaneously.
Steps For Leaving For Leaving Cryptocurrency in Your Will
There are a number of steps you must take in order to leave cryptocurrency in your Will that are much different than the steps you would take to leave traditional assets.
STEP 1: FIND AN EXPERIENCED CRYPTO ATTORNEY
Work with attorney who has experience in incorporating cryptocurrency into estate plans. Although cryptocurrency may be a new type of asset people want to protect and transfer after their death, there are experienced attorneys who can guide you through this process to ensure all of your traditional and crypto assets are secure and inherited by your loved ones.
STEP 2: SET UP YOUR DIGITAL WALLETS
Because cryptocurrency investors take the security of their digital assets very seriously, they often create digital wallets rather than keep their cryptocurrency in a digital currency exchange account (e.g., Coinbase, Gemini). Digital wallets may be kept on a computer, a smartphone app or a physical device. Common digital wallets are PayPal, Venmo, Google Pay, Android Pay, Samsung Pay, Alipay, Zelle and Apple Pay, just to name a few. It’s important to list all and any digital wallets in your Will for your beneficiary’s eventual access.
STEP 3: IDENTIFY YOUR CRYPTOCURRENCY
Identify your cryptocurrency in your Will or trust. We recommend a revocable trust for crypto investors because its contents remains private unlike a Will that must be filed and made public to be administered. This may seem like an obvious step. However, if the crypto assets are not listed in your Will or trust, your executor may not know they exist or they may not pass in a way that you desire. It’s important to identify your cryptocurrency and to whom you want it distributed following your death.
STEP 4: CREATE A DIGITAL ASSET INSTRUCTION LETTER WITH PASSCODES, PASSWORDS AND PINS
When a Will goes through probate it becomes public record. Since digital assets are only accessed through passcodes, passwords and PINs, for security purposes, this sensitive information should not be included in your Will should it go through probate. A digital asset instruction letter (“DAIL”) is a separate document that is referenced in your Will but is not part of the Will or subject to public record. DAILs can also be changed at any point in time. So, should you change access information to your digital assets, this can be changed in the DAIL without going through the hassle and legal requirements of changing your Will.
We recommend creating a DAIL that includes:
A list of digital wallets and where they are stored (e.g., computer, smartphone app, physical device)
Website names and URLs to any exchange used for buying and selling cryptocurrency
Username, passcodes, passwords, PINs and keys needed to gain login access to the digital wallets, exchanges, websites, accounts and devices associated with your digital assets
Once the DAIL is complete it can reside with your Will or trust in a separate location.
STEP 5: CHOOSE THE RIGHT EXECUTOR OR TRUSTEE
The choice of an executor is among the most important decisions you will make as you craft your estate plan. That is because the executor is the person you choose to implement your estate plan when you die. This is the person you will have to trust to distribute the assets in your will according to your wishes, as expressed in your estate plan. Crypto investors should choose an executor who is tech-savvy enough to be able to work with your digital assets, including cryptocurrency.
An ideal digital executor will be someone who is:
Someone you are comfortable enough with to give access to your personal computer files and sensitive personal online accounts
Highly organized and detail-oriented
Committed to following your wishes as you've spelled them out in your Will or digital estate plan
Tech-savvy and comfortable using the Internet
Patient, as the process may take a long time and may require engaging with many different companies
It may be that you name two different executors. One for your digital assets (a digital executor) and one for all of your remaining assets.
Contact Fiffik Law Group to Learn More About Including Cryptocurrency in Your Estate Plan
Adding cryptocurrency to your estate plan is a delicate and technical job and is best to be accomplished by an attorney well-versed in different types of cryptocurrencies and digital wallets as well as estate planning and asset protection. The experienced estate planning attorneys at Fiffik Law Group can assist you in incorporating your cryptocurrency into your existing Will or creating a new Will or Trust with the digital financial assets and physical assets you would like to pass on. Contact us today.