Cryptocurrency’s popularity has rapidly increased in recent years, with more people buying and selling it. Here are three things you need to know about cryptocurrency concerning your estate plan.
Beware of the Tax Consequences
Transferring your cryptocurrency to other people, either during life or at your death, could have income, estate, and gift tax consequences that are important to be aware of.
- Potential income tax consequences. Essentially, the position of the Internal Revenue Service (IRS) is that the sale or exchange of a “convertible virtual currency” (a virtual currency that has a corresponding value to a real currency such as the US dollar or the euro) may result in taxable gain or loss just as the sale or exchange of other property would. Whether the gain or loss is characterized as a capital gain or loss depends on whether the convertible virtual currency was a capital asset in the hands of the taxpayer, like stocks, bonds, or other investment property. If the virtual currency were not a capital asset in the hands of the taxpayer, such as inventory or other property held for sale in a business, the taxpayer would realize ordinary gain or loss.
- Potential estate and gift tax consequences. The IRS considers virtual currency to be property, so federal gift and estate tax laws apply. Because (until quite recently) cryptocurrency has been quickly increasing in value, many people whose estate would otherwise have a value less than the estate and gift tax exemption amounts ($12.06 million for individuals and $24.12 million for married couples in 2022), must now include in their estate plans provisions for minimizing gift and estate tax consequences.
Suppose you own cryptocurrency that has substantially increased in value or that you anticipate will substantially increase in value. In that case, it is essential to discuss with your estate planning attorney ways you can minimize potential income, estate, and gift tax consequences.
Laws Governing Cryptocurrency Are Slowly Inching Along
It is hardly a secret that technological advances are moving faster than the law.
At the same time, as cryptocurrency increases in popularity, more people have cryptocurrency holdings that must be considered part of their estate. Because cryptocurrencies are generally stored so that no personally identifying information is tied to them, owners of cryptocurrencies must inform their beneficiaries that these assets exist, or they could be lost forever at the owner’s death. Further, owners (and their estate planning attorneys) must provide specific instructions for accessing the cryptocurrency, or the information could also die with the owner. Finally, because managing cryptocurrency requires some technological expertise, it is essential to appoint trusted decision-makers with some basic cryptocurrency knowledge.
These factors create unique challenges when dealing with cryptocurrency in your estate plan. A comprehensive estate plan ensures that you and your beneficiaries know about and control what happens to your cryptocurrency upon death.
How You Hold Cryptocurrency Affects Your Plan
How you store cryptocurrency adds an additional layer of complexity to the issue. How you store your cryptocurrency is one of the most important considerations because if you have no plan for how to pass on your cryptocurrency, it could be lost after your death.
- Custodial wallet. A third party, such as a crypto exchange, holds your cryptocurrency, similar to how a bank keeps your money in a checking account. While this is the most convenient option, and there is no worry about “losing your keys,” the downside of leaving your crypto in another party’s possession is that they could freeze your funds or be attacked. With this type of wallet, your beneficiary can work with customer support to have the crypto transferred after your death.
- Cold wallet. A cold wallet is a physical storage device, such as a USB drive that stores your crypto offline. The downside of this option is the hardware cost and that the device may be a small object that is easy to misplace, but it is also the most secure option for storing crypto because it cannot be stolen by hackers when it is offline. You will want to ensure that your trusted decision maker or beneficiary knows where to find the cold wallet and has detailed instructions for accessing the stored crypto.
- Hot wallet. A hot wallet is a desktop, web-based, or mobile app that stores your crypto online. While a hot wallet is convenient, the big drawback is that crypto stored online is at the most significant risk of being hacked and stolen. Your estate plan will need to include instructions on accessing the hot wallet.
- Paper wallet. A paper wallet is a printout of keys, usually in the form of characters and scannable QR codes. It provides a significant amount of security because it stores your crypto offline, but it is the least convenient, and there is also the risk of losing the paper wallet.
No matter how you store your cryptocurrency, your trusted decision-maker must know how it is stored, where it is stored, and how to access it, including all security keys, seed phrases, usernames, and password information.
Because cryptocurrency and the estate planning laws surrounding it are rapidly evolving, it is essential that you work with an estate planning attorney who understands the unique challenges involved in planning for crypto.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, starting with a valuable and educational Family Wealth Planning Session. The Life & Legacy Planning Session will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session (aka Family Wealth Planning Session) to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a 15-minute introductory call today.