Could your digital art or crypto assets be lost to obscurity?

With more people investing in digital assets, it is important to ensure careful estate planning and a well-drafted will so that everything passes according to your wishes

Part of the success of TV shows like the BBC Antiques Roadshow is the thrill when a long-cherished family heirloom turns out to be surprisingly valuable, for example a piece of china that has been on display in the home for many years. Occasionally, a rare masterpiece hits the headlines in the art world, such as the Caravaggio painting found in an attic in Toulouse in 2014; but if your choice of art is NFTs (non-fungible tokens) or you invest in cryptocurrency, then these assets may never be found if you fail to take appropriate steps to protect this part of your legacy.

‘Cryptocurrency, NFTs and other digital financial assets have grown in popularity hugely over recent years,’ says Bridget Thorpe, a Solicitor in the wills and probate team with Bradford & Son Solicitors in Rotherham. ‘With some NFTs changing hands for eyewatering amounts of money, you do not want these assets to be lost to obscurity. It is important to ensure careful estate planning and a well-drafted will, so that everything passes according to your wishes.’

How are crypto assets lost?

If you die without making the existence of your cryptocurrency or NFTs known to your executors and loved ones, it can easily be overlooked. Problems can also arise if you lose mental capacity.

Digital financial assets are owned exclusively online, and the platforms that hold them are unregulated. There is no physical, tangible asset that can be realised in the way that you are able to withdraw cash from a bank account and each platform is entitled to operate by its own rules and systems. This makes it particularly tricky to trace and prove ownership of digital financial assets without the appropriate information.

Ownership of a digital financial asset is proven by what is referred to as a ‘private key’. This is, typically, a long series of randomly generated numbers, letters or words. If the key is lost, or you are unable to remember it or find it, then there is no way to access or transfer the asset as there is no password reset facility.

This can make things extremely challenging. If you are the executor of an estate that you believe includes digital financial assets, or an attorney under a power of attorney, a solicitor can help you to consider the practical steps to take.

Documenting your wishes

When making your will, you should include a reference to your digital investments. It is not necessary to specify the exact holdings, but you should refer to the type of holding and the company it is held with.

You then need to consider what you wish to happen with these assets.

• If you intend for a specific person to receive those assets, you should name the asset and the person you wish to receive it in the will itself as a specific legacy. These types of gifts require particular wording to ensure legal validity.

• If you simply intend for the value of your digital financial assets to pass to your residuary beneficiaries, then you need not reference them specifically in the will, but you should set them out in a separate document.

How to ensure your digital financial assets are not lost

Usually it is inadvisable to write down passwords but, with cryptocurrency that can only be accessed via the private key, it will be imperative that you leave a full list of your private keys so that the assets can be called in and distributed. The security of these details remains paramount during your lifetime, so you should keep the list somewhere safe that only your executor knows about.

A will made by our solicitors will be stored securely on your behalf, and we can also store your list of private keys and pass this to your executor after you have died, or to your attorney in the event that you lose mental capacity.

What other steps should you take to secure your digital financial assets?

It is not just when you die that your crypto assets might need to be accessed. For example, if you lose mental capacity and require care then your attorney may need to sell some digital investments to help pay for this.

As well as making a will, you should ensure that your lasting power of attorney for financial affairs includes a reference to your digital financial assets, stating where they are held, and how they can be accessed so that your attorney can use these funds for your benefit.

How can we help?

When collecting in the assets of an estate, digital investments are much more easily overlooked and lost on death than traditional assets. To avoid this situation, you should make sure that their existence is mentioned in your will and any power of attorney, and that your private keys are safeguarded and stored for your attorney or executor. It can also be a good idea to discuss your assets with your executor and attorney ahead of time, verbally ensuring that they are aware that your estate includes digital financial assets.

Professional legal advice and a professionally drafted will protects your assets for your loved ones. For further information, please contact Bridget Thorpe in the wills and probate team on 01709 377412. Bradford & Son has its office in Rotherham, South Yorkshire.