Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle. Welcome back for another episode of Legal Tea! Today’s topic is a current trend … something going on in current time, that is pertinent to my little estate and elder law world. Today’s topic is a very current trend, and one that I actually got a specific request for! So yeah, if you ever want me to dive into a topic on here, just email me at LegalTeaPodcast@gmail.com or message me on any of our social channels – Facebook, Instagram, Twitter, LinkedIn, etc. Anyway, today’s topic is on cryptocurrency and specifically, inheriting it.
Let’s first start by talking about WHAT cryptocurrency even is – I, for a very long time, avoided this topic like the plague, so if you’re anything like me, sometimes a really basic foundation before we dive into specifics is helpful. To do so, I turned to a Financial Advisor that my office works with, Drew Feutz with Migration Wealth Management, and asked Drew to give me the scoop. I figured he’d be much more reliable than me spending way-too-many-hours digging through the web and not even really knowing if what I am reading is accurate. Let’s dive in…
As Drew shares, before we dive into WHAT cryptocurrency even is, we need to first understand a term of art called blockchain. (Side note: Never heard of this word until Drew shared it with me – so look at me learning right with you all!) Matt Houfan, CIO of Bitwise, explained blockchain like this at a recent conference, “A blockchain is a database that is available everywhere, that everyone can see, that everyone believes is true, that updates instantly, that isn’t controlled by a single person.” When I read that, I was like, “What? What does that mean?!” Essentially, as Drew stated, blockchain is a “digital ledger made up of a bunch of computers throughout the world that record and validate transactions.” Sounds, sort of, creepy – but hey, I’m 0% surprised that’s happening. Anyway, so cryptocurrency’s foundation is much like this – much like blockchain technology.
The next part of understanding cryptocurrency is something called “keys.” According to Drew, these “keys” are what allow transactions to allow to cryptocurrency. There is something called a “public key” and something called a “private key.” Drew shared that he recently heard it described as this – think of the public key as your email address and the private key as your password. So, if you want cryptocurrency, you share your public key (ahem, email address) so whoever is sending you the cryptocurrency, knows where in the world to send it. And if YOU want to transfer the cryptocurrency to someone else after that, you have to enter your PRIVATE key (ahem, your password) to transfer to the other person’s PUBLIC key.
What happens if you lose your keys? Um, it’s bad. Very, very bad. If you lose your private key and cannot recover it, it is gone. As Drew explains, because blockchain is decentralized, there’s no, like, customer service number you can call and be like, “Hey I lost my private key – can you help me out?” Supposedly, there are stories out there where people have lost a lot of money because they can’t find or don’t know what their private key is, which means they have no access to the cryptocurrency.
So … I’m sure you’re wondering (or, at least I was!) what is the difference between cryptocurrency and bitcoin – or are they same – or what? So, according to Drew, bitcoin was the first successful (and is the largest) cryptocurrency. So, bitcoin IS a type of cryptocurrency – but cryptocurrency is not always bitcoin. You see?
So, the thing that got me on this whole cryptocurrency topic is I have a listener, who is also a client too, that shared an article with me on Vox.com by Rebecca Heilweil dated March 11, 2022 titled, “Inheriting Bitcoin is Harder Than it Sounds.” A link to the article is in today’s source links, if you care to take a look. Anyway, I thought it was a timely article, hence why we’re talking about this topic on a “current trends” episode, because cryptocurrency seems to have been, and continues to be, quite the hot topic – should you invest, should you not? I don’t answer that question today, so I hope you’re not banking on me to answer it for you!
It has not been until very recently until I started seeing clients with cryptocurrency like bitcoin as part of their assets. So, like I said earlier, until then, I, sort of, avoided doing the research like the plague. It’s foreign waters!
According to the cited article, cryptocurrency is here. As the article states, “If you don’t own cryptocurrency yourself, odds are you’re related to someone who does. Some 16 percent of US adults say they’ve used crypto, and it feels as though these digital assets are everywhere now, from Super Bowl ads to Bachelor contestants’ Instagram stories.” They’re so right – I remember watching the Super Bowl and the amount of cryptocurrency ads I remember seeing … was surprising. Wasn’t there that one ad that had a QR code in the middle of the screen, the commercial was silent, and so curiosity was killing me – I scanned the QR code and it was some crypto website.
Anyway, so one thing that is definitely pertinent to my estate and elder law world is what in the heck happens to these crypto-assets at your passing? That’s where this handy-dandy article on Vox.com as well as another article I’ve linked from RollCall.com called, “Estate Planners Want to Keep the Crypt Out of Cryptocurrency” by Steven Harras comes into play. As most things in my little estate world, it seems to be quite dependent on whether someone has a plan or not for these cryptocurrencies. As Harras explains in his article, “Unlike a traditional bank, which typically requires executors to produce an original death certificate and other documents to take control of accounts in the deceased owner’s estate, cryptocurrency only requires the fiduciary to have the deceased’s ‘passcode; for access.
So what does that mean?
As Rebecca’s article shares, if someone does not have a plan and more specifically, they haven’t shared the passcode/the private key, that could leave your heirs essentially locked out. Remember how when I was explaining earlier about public keys and private keys – and I said there are stories about people losing all their cryptocurrency because they have lost or forgotten their private key – and there’s not customer service-like setup to call? Yeah, here’s an example where things may slip through the cracks. So, that private key … is SUPER, SUPER important to not lose, destroy, forget, etc. As Zachary Goldman, an attorney at Wilmer, Cutler, Pickering, Hale, and Dorr, perfectly states – “If the executor doesn’t know where the keys or passcode for assets held in a self-hosted wallet are stored, and the decedent hasn’t left instructions, those funds are gone.”
So, I’m sure you’re wondering – okay, Jenny, if you’re telling me that these private key passcodes are like the most important thing ever in cryptocurrency world (especially as it relates passing them down to your beneficiaries), what in the world are my options? Well, it’s all a matter of setting the person up that is supposed to take over your affairs after you pass (i.e. Executor, Trustee, etc.) for success. You almost have to think creatively – like, “What can I do NOW to ensure that person has access to this uber-important private key passcode when I pass away?”
According to the RollCall.com article, some ideas that individuals who have cryptocurrency and incorporated it into their general estate planning have done are: 1) provide their private key passcode to a fiduciary – someone reputable and trustworthy – like a bank or financial institution that is willing to take on the risk of “holding on to” your private key passcode for you (that way, they can provide it to the appropriate person after you pass away); 2) another idea that individuals have come up with is finding a way to safeguard them by placing the private key passcode in a safety deposit box for your executor to access at your passing; 3) a third idea that has been created is storing the private key passcode in a secure password website (i.e. LastPass.com); or 4) a fourth idea is simply sharing the private key/passcode with a responsible/trustworthy person. This one, though, is like sharing your social security number – be careful. Be very, very careful.
The RollCall.com article makes an interesting, yet important point about these “current times” in cryptocurrency land – and the Courts. Laws, of course, adapt with the time. It’s no wonder a few years back, more and more states, including here in Indiana, starting passing legislation around “digital assets.” Specifically in my little estate world, you can now give your Power of Attorney, Executor, and/or Trustee the power to deal/handle “digital assets.”
Though, as legislators and Courts have shared, their intention was not “just” around these types of things – i.e. cryptocurrency – but also giving your Power of Attorney, Executor, and/or Trustee the ability to access things like email accounts, social media accounts, photo storage sites, etc. Therefore, as time passes, it’s very likely that the Court will be asked to help us navigate these “digital asset powers” and specifically, cryptocurrency. Actually, the RollCall.com article explains this theory of the Courts having to deal with cryptocurrency by sharing a case in Connecticut where a jury had to decide whether cryptocurrency were/should be considered securities. That case occurred in November 2021 – so a mere 6 months ago.
Before we wrap this episode up, I want to thank Drew for sharing some insight on cryptocurrency – like I said at the beginning, I was very naïve and frankly, a little scared to take on this topic. I’m not a big fan of swimming in the ocean (I got caught in a rip current when I was in middle school, so it’s a big no thank you for me!), but initially, this felt like I’d be swimming in the Bermuda Triangle! Okay, maybe a little dramatic – but still. I’m glad I took on this topic – I learned a lot and I know for a 100% fact that this whole cryptocurrency thing will hit me square in the face soon, so now I can be a better resource for my clients. I hope you all learned a thing or two as well!
Next week’s topic is on estate planning of the rich and the famous – on that episode, we’re going to talk about the well-known actress, Farrah Fawcett! I’m not sure what she was better at – her acting or that hair! Ah! Anyway, so we’ll talk about Farrah Fawcett next Tuesday, Legal Tea Listeners. Talk to you then and stay well!
Sources:
Drew Feutz, CFP, Co-Founder and Financial Planner w/ Migration Wealth Management - https://www.migrationwealthmanagement.com/