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NFTs and Cryptocurrency: How to safeguard digital investments for future generations and deal with these assets in your estate planning

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The investment space is looking more diverse than ever before with the rising adoption of cryptocurrency (crypto) and Non-Fungible Tokens (NFTs). The NFT and crypto phase is attracting many people to invest significant money trading digital assets. But how will these individuals pass on their digital assets in future years? This article will discuss what people who own NFTs and crypto should be considering to ensure they protect their digital assets if they lose mental capacity or die.

Background: Gen z and millennials investing in NFTs and crypto

A global poll has revealed that 52% of millennials and 74% of Generation Z are considering and open to acquiring non-fungible tokens (NFTs) for their investment portfolios. The fresh poll comes from the deVere Group, one of the world’s top financial advisory, asset management, and fintech firms with reportedly $12 billion under advisement.

The deVere Group surveyed 600 clients aged 42 and under throughout Europe, North America, Asia, Africa, Australia, and Latin America to gain insight into the hunger for digital assets.

A survey administered by the San Francisco crypto exchange Kraken also revealed that 40% of Australian millennials prefer investing in cryptocurrency over real estate and believe that investing in digital assets now will deliver long-term gains. In addition, the survey showed that several Australians are losing confidence in traditional assets like gold, stocks, and real estate.

The study also showed that 22% of millennial Australians (born between the early ’80s and mid-’90s) think investing in digital assets is better to save funds than storing wealth with bank accounts. On the other hand, close to 50% of the baby boomer (born between the mid-’40s and mid-’60s) crowd surveyed said they did not invest in crypto and were sceptical due to the crypto economy’s volatility.

What are NFTs and crypto?

Cryptocurrency

Cryptocurrencies are digital currencies supported by cryptographic systems. They permit secure online payments without using third-party intermediaries. “Crypto” refers to the various cryptographic techniques and encryption algorithms that protect these payments, such as public-private key pairs elliptical curve encryption and hashing functions.

Cryptocurrencies can be purchased or mined from cryptocurrency exchanges. Unfortunately, not all e-commerce sites allow purchases using cryptocurrencies. As a result, even popular ones like Bitcoin and other similar cryptocurrencies are rarely used for retail transactions in Australia. Although, the skyrocketing value of cryptocurrencies has made them popular as trading instruments and investments. To a limited extent, they are also used for cross-border transfers.

Cryptocurrencies promise to streamline existing financial architecture to make it faster and cheaper. Moreover, their technology and architecture decentralise existing monetary systems and allow transacting parties to exchange value and money independently of intermediary institutions such as mainstream banks.

NFTs

Non-fungible tokens (NFTs) are cryptographic assets on a blockchain with distinctive identification codes and metadata that discern them from each other. They differ from cryptocurrencies in that they cannot be traded or exchanged at equivalency.

The individual construction of each NFT has the potential for several uses. For example, they are an exemplary vehicle to represent physical assets like real estate and artwork digitally. Because they are based on blockchains, NFTs can remove the need for intermediaries and connect artists with audiences or can be utilised for identity management. Essentially, NFTs can simplify transactions, remove intermediaries, and create new markets.

A great deal of the current market for NFTs is centred around collectibles, such as digital artwork, sports cards, and rarities.

NFTs transpose the crypto paradigm by making each token unique, irreplaceable, and not possible for one non-fungible token to be equal to another. They are also extensile, meaning you can combine one NFT with another to breed a third, unique NFT. 

Like Bitcoin, NFTs also contain ownership information for easy identification and transference between token holders. Owners can also add metadata or distinctions about the

How to incorporate NFTs and crypto into your estate plan

The anonymity of cryptocurrencies is a significant factor in their success but presents a unique set of challenges when trying to manage and plan your assets to ensure that they pass on to who you wish after you are gone.

It is often arduous for investors to record their crypto assets between daily changes to assets and the vast array of currencies available. In addition, this area is something estate planning lawyers are only just coming to understand, with estate planning traditionally only dealing with real property, personal artefacts, bank accounts, superannuation, life insurance policies, and businesses.

Digital assets, login details, social profiles, etc., must now be factored in when completing an estate plan.

While you may include digital assets in your Will, you should not include the keys in the document. Doing so could breach your crypto assets’ security.

With the stipulation of PINs, passwords and asset codes presenting security and theft risks, estate planners generally advise against making this information public and putting an effective plan in place to pass on these details when necessary, in a secure and appropriate manner.  It is also important to ensure someone you trust can access the assets and associated PINs, passwords, and codes if something unexpected happens and you lose mental capacity. This can happen if you were to have a work injury, car accident, stroke, or suffered another medical condition that impacted your decision-making capacity, requiring something to step in to manage your affairs.

It is important to consider not just who will access your digital assets if you pass away, but also if you lose capacity to handle your own affairs. By appointing an Attorney in an Enduring Power of Attorney, you can give someone the information they need and instructions to manage digital assets if you no longer can do so yourself. An Enduring Power of Attorney can be just as important, if not more important, than a Will as it comes into play whilst you are still alive but have lost capacity. You need to ensure the assets you have worked hard to acquire will be protected and managed in the way you had intended by appointing an Attorney. No matter your age or health status, everyone should have an Enduring Power of Attorney, especially if they hold diverse assets such as crypto and NFTs. If you don’t have an enduring power of attorney in place and you lose mental capacity, your financial affairs could end up being handled by the Public Trustee, which could be disastrous for you and your family.

If you do not put a suitable plan in place and your attorney or executor are unable to access the necessary information, then in a worst-case scenario, the asset is lost.

It has been reported that approximately 20% of all Bitcoins are lost due to lost private keys, never to be retrieved. Bitcoin owners who’ve passed away account for some of the inaccessible Bitcoin. There are various examples where this has happened, including when 30-year old founder of Canadian cryptocurrency exchange QuadrigaCX died, taking with him the private keys to around $190 million worth of various cryptocurrencies, including close to 1,000 BTC. 

If you have crypto assets in your investment portfolio, make sure you discuss these unique assets with an experienced estate planning lawyer about the storage and accessibility of your asset keys.

Three reasons why the younger generation should have an estate plan

1. Not putting your loved ones through letters of administration. Even if your loved ones were aware of the fact that you owned cryptocurrency accounts, and knew where you stored your password, that still would not be enough for them to access your accounts. Without a proper estate plan in place, your digital assets may be put through lengthy, expensive, and legally tenuous process of applying for letters of administration in the Supreme Court in order to have authority to deal with your estate.

2. Blockchain technology. Blockchain technology is another primary consideration for creating an estate plan for your cryptocurrency and NFTs. You require a private key to access each asset, typically in the form of a long passcode or a number of random words. Creating an estate plan which includes an access plan to deal with your digital assets could help you have peace of mind knowing that your investments can be bequeathed to loved ones if anything were to happen to you.

3. Decentralisation. Cryptocurrency is decentralised by design. Central banks are excluded from the process, and it’s secure because their processing and recording are spread across many different computers. The flip side of this decentralised system: there is no governing body supervising the affairs of cryptocurrency. Because the laws encompassing cryptocurrency are complicated and, in some cases, non-existent, it’s essential that you control the security of your investments.

A Will is essential for every Australian adult, regardless of your age or how much you own. Once you turn 18, it would be best if you considered putting an estate plan in place and writing a Will. Taking care of the “what-ifs” now will prevent your loved ones from experiencing a great deal of stress, uncertainty, cost and even conflict in the future. For many tech-savvy adults, if they intend for their older parents, siblings or other close people in their lives to benefit from their digital assets if they die, they must document clear instructions otherwise older generations may not be as familiar with these types of assets would be lost and have no idea of their value or how to access them.

Attwood Marshall Lawyers – helping new generation investments get passed on to the next generation.

Leaving cryptocurrency in your Will requires thorough planning and thought. By taking the appropriate steps now, you can ensure that the beneficiaries of your estate can inherit your cryptocurrency assets easily.

With an estate plan in place, at any age, you can protect your assets and reduce some of the burden placed on your loved ones, whom you will ultimately leave behind.

You may also wish to leave a legacy to a charity or have someone access your digital assets or plan for business succession! Having an experienced estate planning lawyer direct you through the process can ensure you have all your bases covered and your wishes will be preserved.

If you have a cryptocurrency and would like more information about listing it in your Will, call our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 anytime.

You can also make an appointment with any of our lawyers by visiting our website and using our online booking app. Our lawyers can meet with you at any of our conveniently located offices at CoolangattaKingscliffRobina Town CentreBrisbaneSydney, or Melbourne.

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Debbie Sage - Wills and Estates Senior Associate

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