Kelsey M. Scanlan
by Kelsey M. Scanlan
Kelsey Scanlan is a member of Moss & Barnett's Estate Planning and Wealth Preservation group. She represents individuals and families in estate planning and the administration of estate and trust matters. Contact Kelsey.
Mainstream interest in cryptocurrency has skyrocketed over the last few years. Despite digital currencies plummeting nearly USD 2 trillion in value since peaking in late 2021, the market continues to grow. As of May 2022, one in five Americans has invested, traded, or used cryptocurrencies. An estimated 46.5 million more Americans are expected to invest in cryptocurrencies for the first time this year.
For those entering the cryptocurrency market, updating estate planning documents may not be top-of-mind. But incorporating this complex asset class into an estate plan is imperative to protect and eventually gift this unique investment.Accessibility issuesIn 2021, an estimated 20 percent of then-existing Bitcoin, worth approximately USD 140 billion, was lost or stranded in digital wallets. The same features that make cryptocurrency appealing – security, anonymity, and decentralisation – increase the risk these assets may be lost without advanced planning.Cryptocurrency exchange companies do not allow owners to make pay-on-death beneficiary designations. In fact, very few companies have implemented official procedures for the collection and transfer of digital assets upon death. To prevent digital assets from disappearing at death, crypto investors should take the following initial steps:
Simply put, crypto investors not only must inform family members and fiduciaries that crypto accounts exist, but they must also explain how to access these digital accounts to those who will be handling their affairs.Fiduciary considerationsMost states have adopted some form of the Uniform Prudent Investor Act, which requires trustees to invest and manage assets in a reasonably prudent manner. Because the value of cryptocurrency is notoriously volatile, investments are risky. As such, it is very challenging for fiduciaries to comply with their duty to act as a prudent investor when an estate or trust contains cryptocurrencies.
The significant risk of liability involved with managing cryptocurrencies makes many fiduciaries reluctant to serve. To reduce risk and alleviate hesitation, estate planning documents should provide fiduciaries with clear authority to retain cryptocurrency and indemnify fiduciaries to the greatest extent possible for doing so.
Tax implicationsThe IRS classifies cryptocurrency as property for federal tax purposes. Every purchase, sale, or exchange of cryptocurrency creates a potentially taxable event that must be reported to the IRS. Such treatment may result in substantial income, gift, and estate tax implications for the inclusion of cryptocurrencies in an estate plan.Common income and estate tax reduction strategies, including lifetime gifting and charitable giving, become more complicated and potentially less effective with cryptocurrency because its value is difficult to predict at any given time.To comply with reporting and payment obligations and leverage potential tax benefits of cryptocurrency, investors and their fiduciaries should either obtain an appraisal or track and maintain detailed records of the date, basis, and value of each transaction involving cryptocurrency.
ConclusionCrypto investors need to take steps to protect and transition their crypto investments as they would any other financial assets. Whether you have an extensive crypto portfolio or are considering investing in the cryptocurrency market for the first time, Moss & Barnett’s estate planning attorneys can help you plan for your future by protecting both your traditional and digital assets.
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