It’s not the most pleasant thing to talk or think about, but death is inevitable. Less than 50% of adults in the U.S. have already made a will, though of course, this figure varies across age groups — over 75% of people over 65 have made one while only 20% of people under 30 have made a will.
From a legal perspective in the U.S., it can be quite confusing. The IRS doesn’t view cryptocurrencies as currencies but rather as tradable commodities that can be taxed by the relevant authorities. Yet we treat them as assets too and thus must have some form of legal control when it comes to inheritance.
That control or oversight comes from the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) . This law was developed so as to provide relevant parties (such as lawyers or fiduciaries) with clarity and a legal way of dealing with any digital assets held by a deceased person’s estate (or indeed when a person is incapacitated).
The law was written by the Uniform Law Commission (ULC) so that states could then examine it and adopt it. As of 2021, 47 states had enacted the law . So, for the U.S. at least, there is a framework that governs management of digital assets, something that will come as a relief to many who were previously unsure.
How Does RUFADAA Work?
You have to first consider that there are three groups of people who have a vested interest in what happens:
The owner of the digital assets who may want a level of privacy.
The custodian of those assets (businesses who make, store or sell online assets).
The fiduciary or attorney dealing with the estate.
The major obstacle the law faced was that, unlike physical assets, there has always been a degree of secretiveness around digital assets. In the early days, there were no laws that clarified access to those digital files and wallets in the event of death or incapacitation. If the original owner of the digital assets had not left a note of how to access those assets, then the sad reality is that they could be lost forever.
It is important to note that RUFADAA doesn’t focus purely on cryptocurrencies , but on all digital and online assets. That includes things such as Facebook or Google accounts. Custodians have certain rights as to what they can release or whether they request a court order to turn over access and/or information. In the case of things like Facebook accounts, the custodian can also decide what is “reasonably necessary” when it comes to releasing any info.
RUFADDA And Bitcoin
Image sourced from uniformlaws.org
RUFADAA only applies if the original owner has authorized access to their bitcoin. This may be through documents signed with and held by the custodian or it could take the form of a legal document such as power of attorney, a will or a trust document.
A custodian can also limit how much access your fiduciary has, usually to only include aspects that let them carry out their responsibilities. The custodian also has the right to levy administrative charges for any access they provide. This can be important info if you’re trying to decide what happens to bitcoin when you die.
One of the main benefits of RUFADAA is that it clarifies the legal hierarchy when it comes to documentation — and later distribution — of your digital assets. The custodian (or online management system) is viewed by RUFADAA as the highest authority when it comes to ownership of a cryptocurrency account.
What that means in reality is that if you made Person A the beneficiary to your digital assets in a document with your custodian, then that document takes precedence over other legal avenues such as wills, POAs or trusts. If you have no beneficiary agreement with your custodian, then ownership will go to anyone named in those normal inheritance documents.
Should a scenario arise where there is none of the normal agreements nor a custodian agreement, then any transfer of ownership or fiduciary responsibility may be established by the custodian’s own terms and conditions.
What Should You Do?
Image sourced from ucf.edu
You have two main choices when thinking about what happens to bitcoin when you die.
You can either ask your custodian if they have specific tools or a framework for naming a beneficiary to your account, which would only apply if you held your bitcoin on an exchange — an unrecommended practice. Your other choice is to go the traditional route and name any beneficiary to your BTC in a will, a trust document, under POA or in estate documents.
If your estate includes BTC (or any other cryptocurrency) then you should consider a plan that includes all aspects of your digital assets. This means having a way of passing all details such as account details, keys and access to any hardware wallets to the person you want to inherit those assets or to your fiduciary/attorney.
In any will or similar document, you need to include directives for passing on any data, especially the most sensitive data associated with the account. Just passing on the hardware device used is likely not enough for the beneficiary to take control of the account.
The Takeaway
Despite its growth, many people still question whether BTC is a real currency. Yet the growth, and figures very much show that it is something that is here to stay.
You should think of any bitcoin you own as an asset; it may not be a physical one like your house or car, but it still has real value. So, you should carefully consider what you want to happen to your bitcoin in the event of your death or incapacitation. Knowing the steps to take and what happens to bitcoin when you die means your assets can be passed to the beneficiaries you want.
This is a guest post by Jenna Bunnell. Opinions expressed are entirely their own and do not necessarily reflect those of BTC Inc or Bitcoin Magazine.
