May 12, 2022
During the estate planning process, it is important to ensure that your trustees (the personal estate representatives, trustees and agents named in the enduring power of attorney) have the information necessary to access and manage your assets in the event incapacity or death. While most assets are easily identifiable, one exception is digital assets, which can include cryptocurrency and non-fungible tokens (NFTs), as well as emails, social media accounts, and financial apps such as than PayPal and Venmo.
Some issues to consider in relation to digital assets and estate planning include:
The only way for a personal representative to access cryptocurrency after your death (or the agent named in your durable power of attorney in case of incapacity) is with the private key. Without the private key, your appointed trustees will not be able to access your account or transfer your cryptocurrency to intended beneficiaries after your death.
If you have cryptocurrency, where do you store your private key? To ensure that your trustees have access to the private key(s) after your death or incapacity, you may 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 along with your original estate planning documents.
Similar to cryptocurrency issues, your trustees will not be able to access NFTs without the private key or seed phrase required to access the digital wallet where the NFTs are stored. If you have NFTs, where do you store this information? To ensure that your trustees have access to the private key/seed phrase of your NFTs after your death or incapacity, consider giving a copy or information regarding its location in a sealed envelope to your estate planning attorney.
If you own cryptocurrencies or NFTs and want your trustees to retain those assets after your death, consider amending your trust to specifically allow your trustees to retain those assets. Due to their volatile nature, many trustees, especially corporate trustees and other professional trustees, may be reluctant to hold these assets after your death without explicit permission to do so in your trust.
EMAIL, SOCIAL MEDIA AND FINANCIAL APPLICATIONS
Your trustees (or others) will only have access to your emails, social media accounts and financial applications in the event of 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 contain provisions giving your enduring power of attorney, personal representative, and trustees of your trusts access to these accounts. If you want to be sure that your trustees will have this access, check the terms of the accounts as well as your estate planning documents.
If you do not want your trustees to have access to any or all of these accounts, you should also verify that you have not granted them access (either in the accounts or under the terms of your estate planning documents) .
If you have any questions or would like more information about the issues discussed in this overview, please contact one of the following Morgan Lewis attorneys:
Sara A. Wells
Daniel R. Cooper
Ellen J. Deringer
Christina Mesires Fournaris