Cryptocurrency and Estate Planning
Cryptocurrency (commonly known by its most well-known brand, Bitcoin) has become a mythical concept to many, but has become an investment strategy to others. This has created questions in the legal field about how to treat cryptocurrency for tax reasons and for asset protection and estate planning.
It is important for Estate Plans to accurately reflect your assets and protect your assets in order to transfer wealth should something happen to you. Though cryptocurrency is still in its nascent stages, there are some strategies that attorneys can utilize to avoid these assets going through the probate court system.
Some of the draws to cryptocurrency are that it is not subject to any government regulation and is a more confidential way to transact. The issue with this, though, is that there is currently no way to identify holders of cryptocurrency. Cryptocurrency accounts are not associated with account numbers. For instance, if monetary assets are left within a traditional financial institution (e.g. a bank), each state's Controller office has "Unclaimed Property" units. Currently, cryptocurrency is treated as personal property, rather than money. It is unclear whether cryptocurrency assets will be accessible or traceable through Unclaimed Property searches. In fact, your loved ones would not even know that you have cryptocurrency. It is important that you let them know that you have these assets through your Estate Planning portfolio.
Not all Estate Plans are created equal and it is important that your Estate Plan address a few issues with regards to cryptocurrency.
First, your Estate Plan should accurately reflect that these assets exist so that these do not fall through the cracks. At the time of this writing, cryptocurrency companies only allow for single account holders, as opposed to allowing for co-owners or successor owners. These accounts also do not have beneficiary designations.
Second, your Estate Plan needs to give your successor trustee the appropriate access and powers to manage your cryptocurrency, in the event something happens to you. This power comes through a carefully drafted trust and Financial Power of Attorney.
Third, your successor trustee must know where you have kept the "key" to your cryptocurrency and any relevant login identification or passwords. Depending on your relationship with the successor trustee, you may not want to give them the "key" right now because that would give immediate access to transact. There are multiple different ways to store your key, including putting the information on hardware (e.g. USB drive, a Ledger Nano S or similar device specifically for this purpose), through a password app or manager, or even writing it down on a piece of paper that is stored in a safe location like a safe deposit box. Whichever way you decide to utilize, make sure your successor trustee has this awareness and access.
If you have cryptocurrency, it is vital when Estate Planning that you both mention these assets to your attorney and find an attorney who is educated in how to make sure your cryptocurrency is protected as a part of your trust estate. In addition to the tips given in this post, there are other ways that an attorney should advise you with regards to your cryptocurrency. We currently ask all our clients what assets they have and if they invest in cryptocurrency, we have discussions (beyond the scope of this post) about what needs to be done. We also give our clients a “Digital Assets Inventory” template so they can document and update what they currently use. Here is a post that goes over the other kinds of digital assets to be aware of.