The following article appeared in Forbes and I wanted to share it on my blog because the information is critically important for those who hold digital currency. I've heard many stories about millions of dollars in digital currency literally lost forever due to poor estate planning.
The attention and money flowing into digital currencies have never been higher. Bitcoin has seen a resurgence in valuation in 2019 and Facebook continues to explore its own digital currency offering, Libra.
Cryptocurrencies and digital currencies are a reflection of the world we live in: a time of mass digitalization where traditional assets (e.g., store fronts and photo albums) are moving entirely online.
Business is done all around the world, at all hours, and of course online where the two parties never meet. Electronic and digital currencies are a necessity as they make doing business easier. And more than that, they’re a booming business. As of June 2019, over $335 billion is in cryptocurrencies.
But at what cost? What happens to all this wealth when the owners die or become incapacitated? Digital currencies and assets might make business and transactions easier, but it has certainly complicated the estate planning process. Traditional methods of writing a will and letting the executor find all the assets won’t work moving forward.
The Revised Uniform Fiduciary Access to Digital Asset Act (RUFADAA) establishes the rules and regulations surrounding digital account ownership. It’s important to familiarize yourself with the RUFADAA and update your wills, trusts, and POAs in accordance so your fiduciaries have access to your digital assets.
Account Control Under RUFADAA
While cryptocurrencies usually have words like “currency,” “gold,” or “coin” in their names, it doesn’t make it so in the United States. The IRS holds the position that cryptocurrencies aren’t currencies. Rather, they’re more like goods and therefore taxed and treated likewise.
At the same time, digital currencies are, well, digital in nature and fall under a number of federal and state laws regulating digital assets.
At the state level, RUFADAA has been passed into law in most states since 2017. RUFADAA spells out the digital access rights for fiduciaries in the event of the death or incapacity of a digital asset owner.
Under RUFADAA, online management systems are atop the hierarchy over any other form of instruction about an account. So, if you set up a beneficiary designation on your online account, it would take precedence over account instructions listed in your will, trust or power of attorney documents.
The legal documents just mentioned can provide access to your assets in the event of your death or incapacity. Terms of service agreements (TOSAs) also dictate account control past the original owner. A TOSA is the agreement you quickly scroll through to click “I Agree”, in order to set up or update your online account.
With cryptocurrencies or cryptocurrency exchanges, you likely agreed to a TOSA. This would control account access in the event of death or incapacity if no other actions were taken. In states that’ve passed RUFADAA, advanced planning can at least provide your heirs access to the accounts.
But account access doesn’t equate to account ownership. RUFADAA specifically states it doesn’t grant any new rights to the account. So, if your TOSA is for a lifetime lease to the underlying asset – say with iTunes or Kindle – that’s all you have. You can’t pass along the underlying song or book to your heirs, regardless of how you set up your wills, trusts or other legal documents.
Perhaps even more frustrating is that the service provider or custodian of the online account or digital asset doesn’t need to grant the fiduciary account access. Instead, they have three rights under RUFADAA.
First, they can give full access to the online account if legally allowed. Second, they can give partial access. Lastly, they can do a data dump. With many service providers, a data dump of specifically requested information might be the safest option. This would ensure restricted communications or other rights aren’t infringed upon.
The Cryptic World of Cryptocurrencies
With a digital currency, the owner has a right to it as he or she would with any other physical good or asset. Upon death, they have a legal right to the underlying cryptocurrency. However, the exchange or account in which the owner used to access the cryptocurrency could be controlled by the will, POA, trust, or TOSA depending on planning.
With cryptocurrencies, the risk of losing assets or misplacing them is higher than with traditional assets. Because cryptocurrencies are stored mostly on blockchain technology, a lost password or asset might be almost impossible to recover.
The exchanges and online accounts might not be able to retrieve the cryptocurrency depending on how the end user held the asset. Most cryptocurrencies that use blockchain technology create a private key. If the private key is lost, the underlying asset might not be able to be retrieved.
This risk is also one of the strengths of blockchain. It’s almost impossible, at least today, for someone to hack your personal key. The personal key is so personal no one else can recover it for you – not even the exchange.
So without the keys, you have nothing. Any court order or other legal document won’t be worth the paper it’s printed on if you don’t have the personal key.
Digital Estate Planning
Digital currencies have value and legally need to be reported as part of the valuation of an estate. This means you need to track tax-basis. For large estates, digital currencies could even be subject to federal estate taxes.
While a lot of challenges accompany digital assets when being passed to an heir, positives exist. In many situations you can receive a step-up in basis with digital assets that pass through the estate process. If you have a cryptocurrency with a tremendous amount of gain over your original basis, it could be a good asset to leave to heirs as they can receive a step-up in basis to fair market value at date of death.
If you bought a coin for $1,000 and it’s worth $10,000 at date of death, your heirs could receive a basis in the coin of $10,000, wiping out taxes on $9,000 of gain. However, if you sold the asset while alive, you would’ve created a taxable event.
As you can see, digital assets and cryptocurrencies make estate planning complex. You need to track where assets exist online and how to access them. If you fail to do proper planning, your digital footprint and assets will likely be stuck in the cloud forever. Here are a few planning tips to practice when it comes to managing your digital assets and currencies.
Track personal keys.
Access information for underlying digital currency
Monitor online exchanges.
Track login, passwords and two-step authentication for online service provider exchanges where cryptocurrencies are bought, sold and exchanged.
Consider moving cryptocurrencies to hard wallet versus an exchange.
You can purchase encrypted flash drives and external hardware to store digital currencies yourself. Be cautious: If the hard wallet device is destroyed, the asset could be lost.
Update legal documents.
Because RUFADAA provides the rules for giving fiduciaries access to accounts, make sure you update your legal documents in accordance with these new laws and in accordance with your desired wishes.
Track all digital assets, passwords and locations.
While cryptocurrencies are the focus of the article, this planning is important for all digital assets, including Facebook, Instagram, Twitter, websites, etc.
Track valuation of assets.
Certain digital assets, like your Facebook page, might not have much monetary value. However, cryptocurrencies will have a basis and valuation that need to be tracked. These assets can impact your estate taxes and the value you pass to heirs.
The popularity of digital assets isn’t going away anytime soon. For fiduciaries, taking the proper precautions and understanding the nuances of these assets in estate planning is vital.