Cryptocurrency (”Crypto”), is a digital form of currency that acts similar to the US Dollar. You can purchase goods and/or services as well as trade them, like how you would trade shares of a publicly traded company. While cryptocurrencies are relatively new to the financial spectrum, several have been able to get strong footholds on the market and continue to prove themselves a sustainable force.
Cryptocurrency has recently grown to become a common form of digital currency and asset investment. At Montague Law, we recognize the value of cryptocurrency and its potential as an extremely valuable asset now and in the future. We offer crypto legal services and guidance on cryptocurrency asset protection, SEC compliance filings, Initial Coin Offerings, token sales and exchange listings, exchange compliance, and decentralized autonomous organizations.
Why Is Cryptocurrency Asset Protection Necessary?
Now that the IRS has deemed cryptocurrency a taxable asset, it can be classified as property. As property, this means it can be a target of legal action, resulting in the loss of cryptocurrency assets. Protecting this will become vital in ensuring that if at any point your assets become the target of legal action, it will have extra layers of security and present a greater challenge for any persons or entities who try to seize them.
Adding Crypto To Your Estate Plan
In the past few years, cryptocurrency has become a popular form of a financial investment as investors are finding high returns. With this increase in wealth, more people investing in cryptocurrency are seeking to pass these digital forms of currency (e.g., Bitcoin, Litecoin, Ethereum, Ripple, etc.) on to beneficiaries after their passing. By adding crypto to an estate plan, it protects the current and future high value of cryptocurrency for generations to come.
Steps To Including Cryptocurrency In Your Estate Plan
When cryptocurrency is added to your estate plan, there are specific steps you must take to ensure your beneficiaries are able to inherit from your blockchain wallet:
- Provide your fiduciary or trustee with your password ”key” to take control of your account upon your death or store your digital key in a vault or safety deposit box. This ensures immediate access to transfer and distribute.
- No need to provide a death certificate: with your key, your fiduciary can immediately access your wallet.
- Estate planning documents must grant the fiduciary power to access, retain, and manage your digital assets to avoid liability under privacy laws.
- List your specific cryptocurrency types in your will, and update as needed.
- Include information about your digital wallets and grant your fiduciary access.
- Create a separate contemporaneous memorandum to your will with passwords, keys, and PINs to your digital wallet.
- Include a step-by-step guide to explain how your beneficiaries can access your cryptocurrency.
- Store in a secure area – if you lose your password or it gets out to the public, your cryptocurrency is no longer accessible or protected.
- Be sure to update regularly, at least once a year, or anytime you change your password.
Our Crypto Services
There are many complex facets to the cryptocurrency landscape and at Montague Law we offer a number of legal services and guidance on cryptocurrency asset protection, SEC compliance filings, Initial Coin Offerings, token sales and exchange listings, exchange compliance, and decentralized autonomous organizations.
Public companies, certain insiders, and broker-dealers are required to file regulatory documents (e.g., Form 10-K and Form 10-Q) to the Securities and Exchange Commission (SEC). By filing these documents, it provides transparency of information to investors, analysts and regulators. Investors rely on these SEC filings for evaluation of companies for investment purposes. The SEC views almost all cryptocurrencies as securities and has only begrudgingly admitted that Bitcoin and Ethereum are not securities along with a few others. This throws a wrench in what needs to be reported to the SEC. Montague Law can help navigate these intricacies to ensure you or your company’s digital assets are in compliance.
Similar to an Initial Public Offering (IPO), an Initial Coin Offering (ICO) is the way funds are raised for new blockchain based start-up cryptocurrency offerings. Since cryptocurrency is decentralized, nearly anyone can launch an ICO given the use of the right technology. To create an ICO, you would create a white paper detailing how the “coin” would work, ask for funding in either crypto or fiat money from people, and in return you send them the “coin” you’ve created. Should this initial “coin” you created gain high circulation, then the value of the “coin” will increase. As the creator of the “coin,” you have now created a new cryptocurrency that could rival other ICOs like Ethereum. When creating an ICO there are various legal documents from the white paper to sale agreements that need to be reviewed and compliant.
When an Initial Coin Offering (ICO) is listed on an exchange, it gives the public an opportunity to purchase that ICO in what results in a token sale. Tokens are purchased by investors who are interested in the company behind the ICO, the token purchase allows the investor to use it as they please, whether that be for trading, a form of currency to purchase goods or services, or to show stake in the company. When a token is listed on an exchange it is important to note if that token is considered a security or a utility. If the token is considered a Security Token Offering (STO), then it will be regulated and compliant with existing laws established by the Securities and Exchange Commission (SEC) around securities.
SECURITIES OPINION LETTERS
In order for a token to be listed on a centralized exchange, you are first required to obtain a Legal Opinion Letter from a qualified third-party determining if your token qualifies as a utility token and falls outside the scope of securities regulation. Attorneys specializing in digital assets and blockchain technology will conduct a thorough analysis of your project, relevant documentation, and your token through a tokenomics lens in relation to the legal framework of your jurisdiction. The Opinion Letter will also address any risk in your project that could make you liable under securities law. After extensive research and evaluation, Montague Law provides our expert legal opinion on the classification of your token allowing you to move forward with sound guidance and clarity.
A Legal Opinion Letter from an expert attorney such as Montague Law provides your team, future investors, token holders, and exchanges trust and credibility in your project.
A cryptocurrency exchange is the digital platforms in which both buying and selling of different cryptocurrencies (e.g., Bitcoin, Ethereum, Litecoin) is available. When deposits, withdrawals, or purchases of cryptocurrencies are made with fiat money within an exchange, that exchange can define its own set of operations. Since there is no regulated set of crypto exchange operations, some crypto exchanges follow exchange compliances to help mitigate the risk of fraudulent behavior. Examples of such compliances include Know Your Customer (KYC) for customer onboarding, Anti-Money Laundering (AML) for controls, identity verification as a security feature, and Strong Customer Authentication (SCA) as multi-factor authentication access for security purposes. Not every exchange has adopted such compliances, but these compliances are trending as a form of cyber security to protect digital investments.
A decentralized autonomous organization (DAO) is an organization that operates on a blockchain that is completely autonomous and only follows rules encoded in smart contracts—there is no human intervention. The advantage to DAOs is that instructions are executed when triggered by preset rules, which enables transparency, cost savings and decentralized decision-making in an encrypted environment. Because DAOs are decentralized, they can be distributed across multiple countries and jurisdictions, which can create legal issues. At Montague Law, we can give guidance on how regional laws and cross-border contracts could impact DAOs as well as assist in the development of operational documents such as Operating Agreements.
Why Choose Montague Law?
Cryptocurrency is a volatile and fresh new player in the financial investment market. It could continue to see steady progress to becoming a mainstream currency. While cryptocurrency is by no means a sure bet, savvy investors are investing now and need to protect those long and even short-term crypto investments. At Montague Law we render legal advice and are one of the few law firms who are experts in the crypto marketplace. For legal services on protecting your digital assets, ensuring crypto compliance, and offering guidance on legal documentation in the blockchain, ICO and exchange landscape, contact us.
Here are some important terms to learn when it comes to cryptocurrency:
Cryptocurrency: Cryptocurrency is an internet based digital token designed as a medium of exchange. Some cryptocurrencies are generated via a process known as “mining,” where computers solve complex digital puzzles to verify transactions. During this process they are rewarded in a type of cryptocurrency.
Blockchain: The blockchain is a decentralized ledger of transactions across a peer-to-peer network that uses algorithms to record and store transactions.
Securities: Securities are financial instruments used to raise funds for public and private businesses. Securities can come in the form of equity, debt (e.g., loans), and hybrids (equity and debt).
Exchanges: A cryptocurrency exchange is the digital space in which both buying and selling operations of different digital currency is available.