Fong Law Group

Crypto Business Success Story Ends with Two Twists

“Gerald Cotten, the Canadian behind cryptocurrency exchange Quadriga CX, filed a will 12 days before his death listing substantial assets, according to court documents.”

The death of this 30-year-old cryptocurrency exchange founder, has exposed a key estate planning issue for anyone who owns digital assets and especially cryptocurrency: he did not leave a way for anyone to retrieve the cryptocurrency. He also died only 12 days after completing his will, as reported by Bloomberg in “Crypto Exchange Founder Filed Will 12 Days Before He Died.”

His unexpected death left $145 million in Bitcoin and other digital assets protected by his passwords and thorough security efforts. No provisions were made for anyone to retrieve the assets. His wife Jennifer Robertson was his sole heir and executor to his estate.

The Canadian press reported that a Nova Scotia Supreme Court Justice granted the company a 30-day stay on Tuesday to halt any lawsuits from proceeding at this time, and the Vancouver-based firm was granted protection from creditors.

The business was launched late in 2013, and users deposited cash or cryptocurrency through its online trading platform, storing digital currency on blockchain ledgers that are only accessible through a code. There were 363,000 registered users and 92,000 have account balances owing to them, in either cash or cryptocurrencies.

Cotten, the sole owner and director, did an excellent job of protecting his assets. This was fine while he was alive, but now presents a serious situation for account holders. He was very conscious about security. Everything, from his laptop, email addresses and messaging system, was encrypted. He was the only one who handled funds, coins and the banking and accounting side of the business. He also moved most of the digital coins into storage that was not connected to the internet, to avoid being hacked.

His wife can’t find his passwords or any business records for the company. Experts who attempted to hack into the system were only partially able to do so. Attempts to open an encrypted USB key have also failed. Some clients who claim that they are owed money, have retained counsel to represent them during creditor protection proceedings.

Cotten and his wife had no children. The assets that he left to her include several properties, an airplane, a yacht, a luxury car and his two pet chihuahuas. He died as a result of complications, due to Crohn’s disease.

This is an extreme example of what can go wrong, when digital assets are not made part of an estate plan. Most people today do have digital assets and need to address them in their estate plan to prevent the loss of both financial assets and sentimental items, like photos and videos.

Reference: Bloomberg (Feb. 5, 2-019) “Crypto Exchange Founder Filed Will 12 Days Before He Died”

The Brave New World of Cryptocurrencies and Estate Planning

“To ensure that clients' digital assets are passed on to heirs and beneficiaries, advisors should review and take these important measures.”

When it comes to digital assets, the future is here and right now. While you can’t be sure about the value of cryptocurrencies, you can be sure of one thing: one day, the human owner of the digital assets will die. What happens then? This article from ThinkAdvisor, “4 Key Steps for Estate Planning with Cryptocurrencies,” explains how cryptocurrency investors can pass their digital assets to their heirs through estate planning.

Record Private-Key Custody and All Access Details. Digital currency is not the same as bank or investment accounts. The information can be lost permanently, if the investor fails to share the access information. Here’s what needs to be shared for most cryptocurrencies:

Private Key – A public-private key system is used to ensure transactional validity. The public key becomes public every time the cryptocurrency is bought and sold but only the owner knows the private key. This is used to verify ownership and access accounts. A physical record of the key must be created and maintained. Keeping it in a bank safety deposit box or home safe insulates the private key from hacking.

Passwords – Investors who do not secure their digital assets in “hardware wallets,” often have their cryptocurrency stored on default digital wallets provided by an exchange. The owner must share their user name, password and security question information with the exchange, so that digital assets can be retrieved.

Two-Factor Authentication – Many exchanges require investors to use two-factor authentication, usually via a mobile app that provides a unique time to gain access. User name, password and security system must be recorded for anyone else to access.

Use a Hardware Wallet. Once digital currency is purchased on an exchange, it is automatically stored on the exchange’s default wallet, so the investor can access them. However, these default wallets are susceptible to hackers. Investors should immediately transfer their currency to a hardware wallet. Purchased online, they are generally encrypted flash drives that require a password or PIN code to gain access. If you lose that flash drive, or password or PIN code, you may have lost all the assets. However, some hardware wallets support 24-word recovery phrases to help investors restore their accounts. Investors are advised to buy a secondary hardware wallet and make an exact duplicate to have another means of access.

Uniform Fiduciary Access. Roughly 24 states have passed some version of the Uniform Fiduciary Access to Digital Access Act. These laws empower fiduciaries to manage digital assets.  However, they may not yet provide that same level of power for cryptocurrencies.

Determine Tax Liability. The IRS treats digital assets as property, rather than currency for tax purposes, so any capital gains or losses in digital asset transactions must be reported. Many online digital asset exchanges provide data that tracks sales and purchases. However, they don’t always provide enough information to determine the tax basis. Record and save information on every transaction to be able to do the calculations on your tax liability.

If you are involved in cryptocurrency and want to be able to pass these assets along to your heirs, you will need to plan ahead. Speak with an estate planning attorney who is familiar with this new kind of property to ensure that your investments in this new asset do not disappear.

Reference: ThinkAdvisor (Oct. 22, 2018) “4 Key Steps for Estate Planning with Cryptocurrencies”

Life and Death Have Both Gotten More Complicated 生與死都變得更加複雜 (中英對照)

“Death isn’t what it used to be. Write a will, put stock certificates and the deed to your home and a few other pieces of paper in a safe deposit box and you were set for life for the hereafter.”

Estate planning must now include intangible assets that didn’t exist just a few years ago, as well as those that have been around since people started owning private property. Today, says Forbes in the article “Estate Planning for Crypto And Other Digital Assets: What You Need to Know,” there are new kinds of property and new laws that govern them.

Some of the old rules still apply and you need a will. One of the things in that will, needs to be naming an executor who will be in charge of ensuring that your assets are distributed, according to the wishes you state in your will. When it comes to digital assets, things get a little tricky.

The hardest part of digital assets for many people, is how to give access to your digital property. The law has changed. If you own cryptocurrency, you’ll need to list your “crypto keys,” so your executor and heirs can know what is in your estate and be able to access it.

You may need to educate them, so they understand what the assets are, the location of the keys and access control that you use for security. You probably know access control as PINS, passphrases, multisignature or timeclock requirements.

The challenge is, if you die and no one has access to your cryptocurrency keys, your heirs may never be able to access them. They’ll need to know what exchanges you use (Bitcoin, Ethereum, and others) and a list of the digital wallets you own for each.

Most heirs want to sell the crypto property quickly, since the currency is volatile. No one wants to be criticized for losing substantive value in the estate, because they didn’t move quickly enough.  They also don’t want to be brought to court, for failing to look out for the fiduciary interests of the estate.

You’ll need both the proper legal planning and technical planning.

Most states with laws about digital assets, have adopted a model that was written to include things that have not been invented yet.

Electronic signatures on wills, is another digital issue entering the estate planning arena. Most estate planning attorneys are not enthusiastic about this.  However, the change is coming, says an attorney on the drafting committee of the Uniform Law Commission.

National College of Probate Judges President Tamara Curry says she expects that judges are going to have to get up to speed on crypto assets in the next three to five years, since courts will become inundated with estates that include crypto currency and other digital assets.

If you have digital assets, make sure you include them in your estate plan.  Consult an estate planning attorney on how best to incorporate your digital assets into your estate plan. 

Resource: Forbes (Aug. 14, 2018) “Estate Planning for Crypto And Other Digital Assets: What You Need to Know”

“死亡不再像以前那樣。寫一份遺囑，將證券和契約存放在您家中，並將一些其他紙張放入保險箱中，然後你便可安枕無憂。”

資產規劃現在包括幾年前不存在的無形資產，以及自從人開始擁有私有財產以來一直存在的資產。今天福布斯在文章中說“Estate Planning for Crypto And Other Digital Assets: What You Need to Know” (加密和其他數碼資產的資產規劃：你需要了解的內容) 有新的資產和新的法律來管理他們。

一些舊規則仍然適用，並且你需要遺囑。其中一件事，需要根據您在遺囑中表達的意願，命名一名執行人，負責確保您的資產分配。當談到數碼資產時，事情變得有點棘手。

對於許多人來說，數碼資產最麻煩的部分是如何登入你的數碼資產。法律已改變。如果你擁有加密貨幣，則需要列出你的“加密密鑰”，以便你的執行人和繼承人可以知道你遺產中的內容並能夠登入它。

你可能需要對它們解釋，以便了解資產的內容，密鑰的位置以及為了安全要求的登入權限控制。你可能知道登入的資料例如密碼，多重簽名或時鐘要求。

挑戰在於，如果你死亡後並且沒有人可以登入你的加密貨幣密鑰，你的繼承人可能永遠無法登入。他們需要知道你使用的交易所名字（比特幣，以太坊和其他交易所）以及您擁有的數碼錢列表。

由於貨幣波動很大，大多數繼承人都想快速出售加密財產。沒有人願意因為他們的行動不夠迅速，於是因為失去財產的實質價值而受到批評。他們也不想因為他們沒有注意到遺產的信託利益，而被告上法庭。

你需要適當的法律規劃和技術規劃。

大多數擁有數碼資產法律的州都採用了一種模式用來包括尚未發明的東西。

遺囑上的電子簽名是資產規劃領域的另一個數碼問題。大多數資產規劃律師對此並不熱衷。

但是，這一變化即將到來，一位法律委員會起草委員會的律師說。

國家遺囑認證學院院長塔瑪拉庫裡說，她預計法官將在未來三到五年內加快處理加密資產的速度，因為法院將窮於應付包括加密貨幣和其他數碼資產在內的遺產案件。

如果您有數碼資產，請確保將其包含 在您的資產計劃中。諮詢資產規劃律師，了解如何最好地將您的數碼資產納入您的資產計劃。

參考: Forbes (Aug. 14, 2018) “Estate Planning for Crypto And Other Digital Assets: What You Need to Know”