Crypto assets are a property
Crypto assets should now be treated as property as a matter of principle, according to the Chancellor of the England and Wales High Court, Lord Justice Geoffrey Vos. This may seem obvious, but it has important consequences because it means that they are affected by a number of legal rules, including succession, bankruptcy, the rights of liquidators and cases in relation to fraud and breach of trust. The first of these is what we consider here.
Part of the client’s will
Did the founder(s) of bitcoin consider the breadth and depth of crypto assets that would exist ten years on from their initial white paper “Bitcoin: A Peer-to-Peer Electronic Cash System”? The fact that there are now well over 2,000 listed crypto currencies on the various exchanges highlights the need for private client lawyers to be much more aware of the possibility that their clients will own assets of this nature on death.
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It is also extremely important that, in the event of your death or incapacity, the individuals that you have appointed under your will or power of attorney in the position of executor or attorney respectively will be able to access and deal with the crypto assets that you own.
Passing away or losing mental capacity without leaving instructions on how to access your crypto assets could leave loved ones in a position where they can do almost nothing to retrieve those assets which, subject to market fluctuations, could be of significant value. Make sure, when you consider updating or drafting your will for the first time, that you have taken appropriate advice, not only on how to deal with those more commonly held assets such as property and stocks and shares, but also those assets that form part of your digital footprint. It is important that your digital footprint is recorded but also that it is kept up to date and secure.
These assets are very much a 21st-century phenomenon, so you need appropriate advice from a legal team that understands the nature and make-up of these digital assets. Your digital footprint includes potentially valuable assets such as crypto currencies, but also social media and digital accounts such as your iTunes account, Facebook account and air miles. You should consider how you wish these items to be dealt with on your death and how they are to be factored into your estate.