Don’t Let Your Crypto Get Lost After You Die. Here Are Some Tips From A Lawyer
Updated: Aug 18, 2022
Appointing a tech-savvy executor is critical to ensuring that your crypto legacy lives on after your passing, according to Christopher Bridges, Director of Singapore-based Christopher Bridges Law Corporation. We spoke to Bridges to discuss how best to include cryptocurrency in your will and other common issues people face when it comes to estate planning.
Name: Christopher Bridges
Company: Christopher Bridges Law Corporation
Estate Planning Specialization: Will-writing and contentious probates
Base Country: Singapore
Service Style: Compassionate, honorable, service-oriented
Anything Interesting: Lawyer and probation officer by day, university lecturer by night
Q: Can you tell me more about yourself, why did you choose law?
Bridges: My dad was a senior police officer and I grew up living in a police quarter (accommodation provided at police stations for staff and their families). Because I was immersed in law enforcement, I wanted to join the police force and get a degree in political science. But my dad persuaded me to get a law degree instead.
Q: How many years have you done estate planning for?
Bridges: Coming to 32.
Q: What has changed in the 32 years? What are some of the common issues people face when it comes to estate planning?
Bridges: Singaporeans are becoming more aware of the requirements to do a will. Also, the government has been focusing on things like the Lasting Power of Attorney (LPA) in recent years. So when people talk about LPA, they will also consider doing a will.
There are several common issues.
Issues with Overseas Assets and CPF Nominations
One, many Singaporeans don’t realize that they may not be able to effectively distribute their overseas assets under their Singapore will according to Singapore law.
For example, if you own land in countries such as Australia and Germany, those countries may not allow you to distribute them the way you want using your Singapore will. I always advise my clients to seek a second opinion from a local lawyer in that jurisdiction to see whether their intentions under their Singapore will is permitted in that area.
Secondly, a lot of people don’t realize that CPF nomination overrides a will.
Joint Tenancy vs Tenancy in Common
Lastly, another common issue that people face is property.
Historically, most people buy their house as joint tenants. This is because in terms of financing, banks are more comfortable extending loans to joint tenants as they are all equally responsible for the mortgage repayment.
A lot of people don’t realize that they can’t give the property away in their will if they hold the property as joint tenants. If they want to bequeath their property shares, they have to change the manner of holding from joint tenancy to tenancy-in-common.
Bank Financing Consideration
However, things can get complicated if the property is still mortgaged, because the bank may not consent to refinancing if you make the change.
If you are still paying back the mortgage as a joint tenant and want to change into tenants-in-common, you have to consider whether you have the income source. The bank may not allow mortgage facilities if there is no income source.
But if the property is fully paid up, it’s only a matter of filing papers, paying conveyancing fees and/or stamp duties to change the manner of ownership and the titles.
Willing Property Shares as Tenants in Common
When you try to change the manner of holding to tenancy-in-common, there is an issue to consider.
Normally, not many people would purchase a percentage of a property, such as 20% or 30%, so how will you structure your will when you have fixed shares now?
Assume that you and your spouse each own 50% shares of the property, and in your will, your child and your spouse will each get half of your 50% shares. This means your child will own 25% shares of the property and the rest by your spouse. But your child might run into issues such as not being able to keep the inherited shares if he or she is an existing HDB owner, and your partner might have to consider refinancing and buying out your child's shares.
Additionally, if the beneficiary can’t hold the HDB flat, HDB requires the flat to be disposed of within six months after the owner passed away.
Who Dies First In An Accident
Another interesting point that people generally don’t know is that under the law, there is a presumption of death. If a husband and wife were both in a plane crash, the older person is presumed to have died first, even though they may have both died at the same time.
Assuming that the husband is the older person, the law would presume he had died before her, so the husband's assets will be distributed first.
Q: Circling back to the comments on executor, have you encountered cases where the testator gave the executor the power to decide how the assets will be distributed?
Bridges: At the end of the day, you don’t want to have people fighting after you are gone. If you give the executor the power to decide, he or she may favor one beneficiary over the other, may not act reasonably and in good faith and may breach his or her fiduciary duties as an executor.
This is when everyone would start fighting. Your family may fight each other in court and waste a lot of money. If so, what’s the point of letting the executor make all the decisions? You might as well just let intestacy law decide for you.
Q: Can you share some interesting cases where the will is challenged in court?
Bridges: I have done four wills for someone prior to his death. In all four wills, it is stated that his wife was to get 100% of the property.
One day, one of his children saw the father’s will and realized the wife will be getting the whole house, so he took the father out while the wife was overseas. The father then changed his will three days later, and that very last will he didn’t do with me.
In this last will, it stated that the house was to be sold and shares were divided equally between the son and the wife, as opposed to the wife getting 100%. And now, the validity of the will is being challenged.
When Can A Will Be Challenged?
A will’s validity can be challenged on several grounds, such as whether the person is mentally sound, under undue influence, or had been fraud when the will was written and signed.
If my clients bring older people in to sign wills, I will normally advise them to get it executed before a doctor, to certify whether the person signing the will is mentally sound.
For this particular case, we initially considered the possibility that the man was not mentally sound when he signed his last will. However, a doctor was there during the signing to certify he was mentally sound and now the will is being challenged on the basis of undue influence, where he was influenced by the beneficiary to create such a will.
Read more: Guide To Making a Will - Singapore Edition
Q: At what age will you recommend for someone to sign a will before a doctor?
Bridges: You have to look for any symptoms that the testator may not be mentally sound.
As a lawyer who is preparing your will, it is quite apparent if you are brought in by a wheelchair because of infirmity (ill because of old age) to see me. I will converse with you and see whether you can clearly communicate with me.
At the end of the day, it is the lawyer’s level of confidence of witnessing a will, because if the lawyer thinks or has reasonable grounds to suspect that the testator may not be mentally sound and witnesses the signing, the lawyer might face professional negligence claims.
Part of a lawyer’s duty when witnessing a will is to explain and ensure the testator understands the nature and contents of the will. If there are any alarm bells, I would ask you to get your will witnessed before a doctor.
General Rule of Thumb
For example, if I know all the members in a family, and only one of the three brothers brings in his mother to see me, especially if he is going to get the mother’s entire estate, I would be placed on notice that something is wrong. In such a case, I would ask the mother to have the will witnessed by a doctor, to ensure that she knows what she is doing.
If I realize the person who I’m interpreting the will for is losing track or is not fully mentally capable then I will refer that person to a doctor.
But as a general rule of thumb, I wouldn’t normally witness wills where the testator is above 70 years old. But these days, older people remain mentally sound, so even if someone is 73 or 74 years old and can still hold a good conversation with me, I have no qualms about witnessing this person’s will.
Q: Let’s talk about some hot topics. Firstly, do you own digital assets such as cryptocurrencies?
Bridges: I have invested in about six to seven cryptocurrencies and was a shareholder and director of a crypto platform in Singapore that provided trading and exchange. So I have some experience with cryptocurrencies.
Q: What is your advice on how to do estate planning for cryptocurrencies?
Bridges: Most crypto accounts can easily be hacked into, and the issue is the e-wallets. You are supposed to keep your e-wallet details only to yourself, but what if you want to include crypto in your list of assets? Who do you allow access to your crypto after you pass away? If you let the cat out of the bag before you sign your will, people who have seen your will may access your e-wallet online and take out all your crypto.
In Singapore, crypto is still not considered fiat currency but a commodity, a type of chattel (a personal property). If you want to dispose of your crypto, you can create a schedule of assets and list it in, same with how you would dispose of your car. The only issue is the mechanism.
An Executor Capable of Handling Crypto
You have to speak to your executor and make sure he or she is tech savvy enough to know how to transfer from an e-wallet and the beneficiaries have their e-wallets to receive the crypto.
Alternatively, you can have a general disposition in the will saying that your crypto will be directed to the executor at your time of death, and have all your crypto converted into fiat currency and distribute the fiat currency out in cash, which is much easier.
Related Articles: How to Choose Beneficiary, Executor in My Will?
Q: Will digital assets be a rising issue among estate dispute cases?
Bridges: If the executor is not tech savvy and was somehow negligent by allowing the digital assets to be hacked and stolen, he or she may be held personally responsible for the stolen assets, because executors are under fiduciary duty.
For example, the executor may be liable for accidentally leaving the key or password for others to access or clicking on phishing or scamming sites and losing the assets.
Alternatively, the executor could also make mistakes such as typing in the wrong e-wallet number and the cryptocurrency was sent to somewhere else. These are some of the reasons that may cause estate dispute cases numbers to rise.
I would advise the testator to assess the competence of the executor to carry out the wishes where cryptocurrency is involved and ensure the beneficiaries have an e-wallet that is safe, not locked on or connected, and kept in a cold wallet like a thumb drive.
Q: Are there any tax implications when one buys cryptocurrency from a US-based exchange?
Bridges: A lot of people don’t realize that the laws of the Securities and Exchange Commission (SEC) of the United States (US) extends beyond US jurisdiction.
If a testator has existing crypto stored in an e-wallet that is in a thumb drive, I will say there is no issue. But if the testator is planning to trade and buy certain things in the US in the future, then I would suggest considering having a US lawyer to give advice on tax implications for US-acquired assets stated under a Singapore will.
Ever Changing Rules on Crypto
Exchanges in the US are still quite fluid now, but the SEC is trying to clamp down a lot of crypto and may come in with certain laws. So far, they have not classified any of them as taxable, but once the law says it is taxable, then they may be able to disclose traders’ identities that would allow crypto to be traceable and do things related to anti-money laundering, etc.
Frankly speaking, crypto is still very fluid, make sure you follow the guidelines of the Monetary Authority of Singapore (MAS) in Singapore.
Q: What are your interests or hobbies?
Bridges: I teach at night for Murdoch University and Birmingham City University. I am quite keen on teaching and I appreciate the interaction with my students.
I’m also a volunteer probation officer with the Ministry of Family and Social Affairs where I counsel wayward youths. In fact, one of my probationers, who was a convicted drug trafficker, had recently become a practicing lawyer in Tasmania and I’m really proud of that. Most of my hobbies are related to trying to give back to society.
This interview has been edited for length.
Can I will my HDB flat as a joint tenant?
No, you can’t will your property if you hold the property as joint tenants. Right of Survivorship will supersede a will.
Can I will my HDB flat as a tenant-in-common?
Yes. You can will your property shares as they are defined as fixed shares.
How can a will be challenged?
A will can be challenged when a person is not mentally sound, under undue influence, or had been fraud when the will was written and signed.
What do executors have to be beware of when they handle digital assets such as cryptocurrencies?
An executor may be liable for accidentally losing the assets, such as clicking on scamming sites or making computational mistakes.
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