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Death & Dying. Law & Technology.

What Happens to Your Bitcoin When You Become Incapacitated or Die?

Megan Yip

Welcome Erica Bertorello to my blog. Enjoy her review of Bitcoin, and learn more about her work at the bottom of the article. 

Consider the following: Christian Troy is a single, successful computer executive in his forties. Christian’s two passions in life are his job and extreme mountain climbing. He has had the good fortune to work for a couple of extremely successful start-up tech companies and has become extremely wealthy. Christian decides to pour $2,500,000 USD into Bitcoin, a digital currency system. He also decides it would be a good idea to “get his affairs in order” and has an estate plan drawn up. Unfortunately, Christian’s estate planning attorney failed to instruct Christian to include the Bitcoin in his trust.

One month later, Christian goes on a mountain climbing expedition to Mount Everest. During the climb a huge avalanche whisks him off the side of mountain and he plunges to his death.

Bitcoin wallets are not bank accounts.

Traditionally when someone dies, surviving family members go through a deceased person’s belongings (e.g., the file cabinet filled with “important” papers) and watch the mail for a month or so to see what important financial documents (e.g., bank statements, bills) arrive. Using this information, it is easy to gain access to a dead loved one’s bank accounts after death and the procedure is streamlined because every jurisdiction has a clear set of rules governing this type of situation.

With a bank account, having the account name is usually sufficient. However, unlike the local bank branch down the street, families usually cannot visit a Bitcoin operator. Many Bitcoin exchanges and wallet companies are incorporated outside the U.S. without a true headquarters and are operated through virtual offices all around the world. Often times, there is nobody to contact at all and Bitcoin operators do not have access to login information.

Do you own any Bitcoin, and if so, did you include it in your estate plan?

Today, many people have gone paperless and often times financial documents, account details, records of debt and information about other assets are contained on a hard drive or in an e-mail account or cloud storage. If there is no will and no instructions, or if family members do not know if their loved one owned any Bitcoin, ascertaining whether or not the deceased had any Bitcoins or a Bitcoin wallet can be a significant challenge.

Family members may inspect smartphones or computers for valuable data, but very few people will look for Bitcoin wallets if they are not specifically told to do so. Additionally, Bitcoin wallets are tiny so they can be stored on all kinds of digital media from memory cards and USB sticks to network attached storage and cloud services, as well as in physical paper wallets.  Bottomline: Bitcoin wallets are easy to overlook.

Bottomline: Bitcoin wallets are easy to overlook

Does your estate plan include instructions regarding your Bitcoin?

Even if surviving family members realize some transactions were made to Bitcoin exchanges that might not be enough in the absence of clear instructions. Finding a Bitcoin wallet will not be of much help if it is properly encrypted and no instructions are left behind.

The easiest way for an executor, trust administrator or family member to search for a Bitcoin wallet is to see whether or not the Bitcoin application is installed on your computer.

However, accessing the Bitcoin wallet through the Bitcoin application will require your Bitcoin username and password. If the Bitcoin application cannot be located on the computer, other options include searching the computer’s hard drives for wallet software; searching browser history or bookmarks for links to online wallets and exchanges; or searching mobile devices for popular wallet applications.

However, finding a Bitcoin wallet is just the first step. The ability to control Bitcoin in a wallet is tied to a secure, cryptographic key or address and the executor, trust administrator or family member must also have this address to execute a Bitcoin transaction (e.g., exchanging Bitcoin for cash). Without the key, the Bitcoin is inaccessible and will remain lost in the Bitcoin protocol forever.

Finding a Bitcoin wallet is just the first step.

Can my executor, trust administrator or surviving family member use my username and password to log into my Bitcoin wallet?

Accessing your private computer, email or digital assets (e.g., a Bitcoin wallet) with your login name and password after you die creates another host of problems. The Computer Fraud and Abuse Act (CFAA) creates civil and criminal liability for accessing protected computers, systems or networks without authorization or in excess of authorization and obtaining information, including financial information.

Often times, authorized access does not extend beyond the account. Many service providers do not allow third parties to use someone else’s login information under the Terms of Service Agreement. If your executor, trust administrator or surviving family member uses your username and password to log into your account, he/she is violating the terms of the Terms of Service Agreement, creating potential CFAA liability.

The Department of Justice (DOJ) has taken and defended the position that violations of a service provider’s Terms of Service Agreement are actionable under the CFAA. Although DOJ does not routinely prosecute Terms of Service violations, the potential to do so is a serious threat to the people you have entrusted to administer your estate.

Currently, there are no companies that specialize in estate planning for Bitcoin, so it is up to you to plan for disposition of digital currency upon your death.

Have you made plans for your Bitcoin or other digital currency?

 

This post was written by Erica J. Bertorello. Erica is an experienced civil litigator with over sixteen years of practice in the areas of personal injury, medical malpractice, product liability and contract law. After witnessing a prolonged illness and decline of a close family member, followed by a lengthy, convoluted trust administration, Erica decided it was time to shift the focus of her law practice. She returned to Golden Gate University, School of Law in spring of 2014 to pursue her Master of Laws (LLM) in Estate Planning, Trust, and Probate Law. Erica anticipates opening her estate planning practice in fall of 2016. You can contact Erica at: ebertorello.esq@gmail.com

 

This website is intended for informational purposes only. While the information in this website is updated periodically, additional facts or future developments may affect the website's content, and thus no guarantee is given that the information provided on this website is accurate or complete.

What's a digital legacy?

Megan Yip

A legacy is what you leave behind when you leave a place. The dictionary definition suggests that a legacy is personal property and real property that you leave behind when you die, but I think that definition is pretty narrow. A legacy can also be anything including memories, traditions, relationships, things, art, and systems. 

So, what makes a legacy “digital”?

I think it could also be called a “cyber legacy” or an “online legacy”, but digital seems more inclusive because digital suggests what you leave online, but it also describes what you leave on your hard drive, thumb drive, playstation etc., whether that’s accessible through the internet or not. This could include accounts of all sorts, social media, relationships, photos, videos, emails, files in online storage, video games and more. In terms of 'tangibility' and also regulation, the digital legacy is somewhere between the ethical will and the formal legal will or trust.  Digital legacies are more tangible and are regulated more than memories and relationships, but they are less tangible than our real property and private property, which have hundreds of years of case law and much codified law to tell us what to do with them.

What is your digital legacy?

Like any legacy, digital legacies are very unique to the individual. There will be commonalities among your social group - the way ethical wills may have commonalities among families and social communities. There will be different commonalities among your professional group - the way estate plans, wills and trusts for people with certain kinds of monetary or real property assets have similarities.

Here are some questions to figure out what your digital legacy might be:  

How many hours do you spend in front of your computer or other ‘digital device’ each week?

What do you research, create, collect or enjoy while you are there? 

Have you created things and solved problems?  Have you networked and encouraged many people? Have you written music or poetry?

Who knows about it? Who should know about that?

What plans will you make to share your digital legacy with others?

Is there a catch to 'going paperless'?

Megan Yip

Photo by Image Source/Photodisc / Getty Images

Many of us get most, if not all, of our bills and correspondence with companies via email. For many reasons this is great. The environment wins, we don't have to do filing, our kitchen table isn't full of quite so much mail...the list goes on and on.

However, like most things in life, there's at least one catch. Some people fear data security. Others feel they have fallen prey to identity theft more often than when they dealt only with paper. I think that these can be valid concerns, but the big problem in my world has to do with what happens after you die. Namely, post death estate* administration.

In other words -When you kick the bucket, how the heck do we clean up all your stuff, if we don't know where it is?

One of the first steps that an executor, a trust administrator, a family member or a lawyer has to do when someone dies is take an accounting of all they have - debts and assets.

In recent history, the surviving family members would watch the mail for a month or so and as the bills and statements rolled in, they'd read them and make note of what accounts the person had. They could also thumb through the paper-filled filing cabinet of the deceased. Today, now that we've gone paperless, and often snail-mail-less, all of our account details, records of our debts and many of our assets are in our emails. Most documents and files are kept in online storage.   The ability to access your email after death is decided by the Terms of Service of the company who provides your email service and by the Stored Communications Act. Under the Stored Communications Act, which is part of the Electronic Communications Privacy Act, email is given extra protection as stored electronic communication, meaning your family or executor will probably be prevented from accessing it.

If your family, executor, or trust administrator doesn't have access to your email when you die, they will have a difficult time with the very first task they will be charged with after they bury you - taking an accounting of your assets and debts. 

Do you have a plan so it's easy to clean up your digital accounts after you're gone?

What about if you have an accident and become unconscious? Will your loved ones be able to pay your bills, communicate with your employer and contact your insurance company while you're in the hospital?  Chances are they won't find much helpful information written on paper at your house. It's also likely that they will violate a company's terms of services if they take the liberty to log into your account.  That's the catch to 'going paperless'.

 

*Estate is the legal word to refer to the property of a deceased person. Though it conjures up ideas of a large house on the English Countryside, everyone has an estate - some big, some small, some involving real property, some mostly liquid assets.