During the estate planning process, it is important to ensure that your fiduciaries (the personal representatives of the estate, trustees, and agents named in the durable power of attorney) have the information necessary to access your assets and manage them in the event of your incapacity or death. While most assets are easily identifiable, one exception is digital assets, which can include cryptocurrency and nonfungible tokens (NFTs), as well as email, social media accounts, and financial applications such as PayPal and Venmo.
Some issues to consider in connection with digital assets and estate planning are as follows:
The only way for a personal representative to access cryptocurrency after your death (or the agent named in your durable power of attorney in the event of your incapacity) is if they have the private key. Without the private key, your named fiduciaries will not be able to access your account—or transfer your cryptocurrency to the intended beneficiaries after your death.
If you have cryptocurrency, where are you storing your private key? To ensure that your fiduciaries have access to the private key(s) after your death or incapacity, you might want to consider giving your estate planning attorney a copy of the private key(s) or information regarding its location in a sealed envelope to be retained by the law firm with your original estate planning documents.
Similar to the issues with cryptocurrency, your fiduciaries will not be able to access NFTs without the private key or seed phrase required to access the digital wallet in which the NFTs are stored. If you have NFTs, where are you storing this information? To ensure that your fiduciaries have access to the private key/seed phrase for your NFTs after your death or incapacity, consider giving a copy of it or information regarding its location in a sealed envelope to your estate planning attorney.
If you own cryptocurrency or NFTs and want your trustees to retain these assets after your death, consider amending your trust to specifically authorize your trustees to retain these assets. Due to their volatile nature, many trustees, especially corporate and other professional trustees, may be hesitant to retain these assets after your death without explicit authority to do so in your trust.
Your fiduciaries (or others) will only have access to your email, social media accounts, and financial applications in the event of your incapacity or death if you have granted them access—either in your estate planning documents or by the terms of the accounts. Some estate planning documents have provisions granting the agent in your durable power of attorney, your personal representative, and the trustees of your trusts access to these accounts. If you want to be certain that your fiduciaries will have this access, check the terms of the accounts as well as your estate planning documents.
If you do not want your fiduciaries to have access to some or all of these accounts, you should also check to ensure that you have not granted them access (either in the accounts or by the terms of your estate planning documents).
If you have any questions or would like more information on the issues discussed in this Insight, please contact any of the following Morgan Lewis lawyers:
Sara A. Wells
Laura B. Lerner
Daniel R. Cooper
Ellen J. Deringer
Christina Mesires Fournaris