Estate Administration

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While success in crypto-currency investing is far from assured, death, sadly, is.  Accordingly, it is vital that investors in Bitcoin and other crypto-currencies are prepared for the unique estate planning factors that apply to digital assets.  The following are five estate planning factors that should be addressed immediately by crypto-currency investors to ensure that their digital assets are effectively passed on to their heirs or beneficiaries.

  1. Custody of Private Keys and Other Information to Access Digital Assets

Unlike bank accounts which can be accessed post-mortem, digital assets typically require a variety of private information to be accessed.  This information (and an investor’s digital assets) may be lost forever if an investor fails to record it or share it with a trusted third party before they die.  To avoid this, it is crucial that investors physically record the following private access information and provide for custody of this information in their will:

  • Private Key: Most crypto-currencies use a public-private key system to ensure that transactions are valid.  While the public key is made public every time the investor buys or sells crypto-currency, only the investor knows the private key.  Private keys are essential to verify ownership and access digital assets, and should be recorded.  Gaining access to a private key is similar to gaining ownership of a bank account, so it is vital that private keys are kept safe.  Creating a physical copy of your private key and securing it in a bank safety deposit box insulates your private key from hacking and may provide the safest means to protect it.
  • Passwords: Crypto-currencies are traded on online platforms commonly known as exchanges.  Investors that fail to secure their digital assets in hardware wallets (see below) typically have their crypto-currencies stored on default digital wallets provided by an exchange.  It is important that the username, password, and security question information for exchanges be recorded to retrieve digital assets from exchange wallets.
  • Two-Factor Authentication: Many crypto-currency exchanges also require that investors use two-factor authentication to authenticate their identity when accessing their account and transferring digital assets.  Two-factor authentication is typically accomplished via a mobile application that provides a unique code to be entered into the exchange.  Investors who use two-factor authentication should record their username, password, and security question information.
  1. Custody of Hardware Wallets

Once Bitcoin and other crypto-currencies are purchased on an exchange, they are automatically stored on that exchange’s default wallet where they can be accessed electronically by the investor.  Digital wallets, especially those used by exchanges, are susceptible to hacking. Investors should transfer their digital assets to a hardware wallet.  Hardware wallets can be purchased online and are, generally, encrypted flash drives that require a password to be accessed.  Investors and their heirs may lose their digital assets if their hardware wallet is lost or damaged.  Investors should record the password and other access information for their hardware wallets, and provide for custody of the information and the wallet itself in their will.

  1. New Jersey Uniform Fiduciary Access to Digital Assets Act

In 2017, New Jersey enacted the Uniform Fiduciary Access to Digital Assets Act (the “Act”).  The Act generally enables individuals to appoint a fiduciary to manage their “digital assets”, broadly defined as electronic records.  Under the Act, electronic records include account information for online exchanges.  Unfortunately, while the Act authorizes a fiduciary to access a deceased investor’s exchange account, it fails to consider that the private key – the essential information to remove digital assets from a digital wallet – is not available to exchanges.  Moreover, the Act’s limited applicability to electronic records may exclude its applicability to hardware wallets.

  1. Fiduciaries under Power of Attorney and Will

Under a well drafted Power of Attorney, an agent, appointed by the principal, is given the power to manage the principal’s assets and make investment decisions on behalf of the principal.  Depending on how the document is drafted, the powers granted under the Power of Attorney can either be effective immediately upon execution or only effective upon the disability or incapacity of the principal.  Having such a document avoids the necessity of asking the court to appoint someone as the principal’s guardian if he or she cannot manage his or her own affairs.

Among other things, the executor of an estate is tasked with distributing the property of the decedent in accordance with the decedent’s will.

In the context of Bitcoin and other crypto-currencies, it may be necessary for the agent under a Power of Attorney or the executor of an estate to have control over these assets.  As such, it is critical that an owner of crypto-currency have a well drafted Power of Attorney and Will, specifically providing the agent with authority over the crypto-currency assets and the necessary information to access such assets.

  1. Estate Planning with Crypto-Currencies

The federal estate tax is based on the value of one’s assets less liabilities at one’s date of death and is imposed at a rate of 40%.  One important exception that is critical to understanding how the federal estate tax works involves the estate and gift tax exemption.  This exemption is the amount that one can transfer to anyone during one’s lifetime or at death without incurring a gift or estate tax.  In 2018, the exemption is $11.18 and this amount will be indexed annually for inflation until 2026, when the exemption amount is scheduled to revert to $5.49 million, with an adjustment for inflation.

For wealthier owners of crypto-currency assets, implementing certain estate planning techniques in order to remove the value of these assets from his or her estate could be highly beneficial.  One such technique would be the creation of a limited liability company (“LLC”), funding the LLC with crypto-currency assets, and then gifting most of the economic value of the LLC to a family trust.

The gift would use a portion of the owner’s federal gift tax exemptions and thus no federal gift tax would be due.  Additionally, if the LLC is created with voting and non-voting membership interests and only the non-voting interests are transferred to the family trust, the value of the gift could be discounted for gift and estate tax purposes.  Moreover, all future appreciation on the value of the LLC interests gifted would accrue outside of the transferor’s taxable estate.

Investors in crypto-currencies are at risk of losing their assets at death unless they plan ahead.  Following these five factors and speaking to an estate planning attorney versed in crypto-currencies will help ensure that digital assets are effectively passed to heirs or beneficiaries.

New Jersey recently enacted the Uniform Fiduciary Access to Digital Assets Act (the “Act”).  See the Act here.  In general, the Act provides executors, trustees, guardians, and power of attorney holders (“fiduciaries”) with the ability to access and control “digital assets” belonging to decedents, beneficiaries and wards.  The term “Digital Asset” is broadly defined under the Act as any electronic record, and includes e-mail accounts, social media accounts, virtual currency accounts (e.g., Bitcoin), domain names, blogs, photos and videos posted to the internet, music sharing services, cloud based storage accounts and more.

Obtaining Access to Digital Assets

Basically, the Act acknowledges that an individual has a property right in his or her digital assets, and permits an individual to designate a fiduciary to manage those assets.  The terms-of-service agreements (“TOSA”) used by many companies that store digital assets (e.g., Facebook or Yahoo), which are called “Custodians” under the Act, provide that an individual’s account is non-transferrable and terminates at death.  The Act essentially overrides the TOSA and allows individuals to authorize fiduciaries to access their accounts by serving a request and proof of authority on a Custodian.

Among other things, the Act seeks to address situations where a family member or loved one is denied access to a decedent’s account because the Custodian refuses to allow it.  For example, in a well-publicized case (In re Estate of Ellsworth, No. 2005-296, 651- DE (Mich. Prob. Ct. May 11, 2005), the family of a U.S. Marine killed in Iraq successfully sued Yahoo in a Michigan probate court for access to the decedent’s e-mail account.  Such a lawsuit now could be avoided under the Act in New Jersey if the decedent had authorized access during life.

The Act contains detailed procedures for obtaining or restricting access to digital assets.  First, a designation in an “Online Tool” (i.e., a tool provided by a custodian allowing an individual to grant or deny access) has priority over any designation contained in an individual’s estate planning documents or the TOSA.  If the individual does not use an Online Tool (or the Custodian does not offer one), then any direction contained in the individual’s estate planning documents controls.  If there is no Online Tool designation or direction contained in estate planning documents, then the Custodian’s TOSA will control.  See Section 4 of the Act.  Thus, an individual can specify which digital assets may be preserved for posterity, and those he or she prefers to take to the grave.

The Act does not apply to any digital asset of an employer used by an employee in the ordinary course of business.

Steps to consider

Individuals may now wish to consider:  (1) creating an inventory of their digital assets, which may include valuable domain names or virtual currency accounts; (2) using Online Tools to grant fiduciary authorizations or ensuring that estate planning documents include a specific grant of authority to access digital assets; and, (3) specifying any digital assets that they do not want fiduciaries to possess or ascertaining that the terms of the TOSA will suffice to achieve the desired restriction.

Obligations of fiduciary

The Act requires fiduciaries to act in a manner that is consistent with the individual’s wishes, and they cannot engage in conduct that violates the scope of authority provided to them.  Moreover, fiduciaries have a duty to marshal and preserve digital assets within their control and could, presumably, be held accountable for waste or mismanagement.

In sum, the Act modernizes New Jersey law by expressly recognizing and clarifying the rights and obligations of fiduciaries and individuals with respect to digital assets.