Singapore: Leaving Behind Digital Assets As Inheritance In Will / Estate

When a person dies, their assets will be distributed according to their will, or if there is none, then under statutory law.¹ Most people will include in their will:

1. Bank accounts and cash;
2. Stock/share portfolios;
3. Real estate;
4. Vehicles; and
5. Luxury watches, jewelry, or other assets of value.

However, an often-overlooked class of assets is digital assets. This class includes:

1. Stored value or money held on platforms such as PayPal, Amazon, InstaReM, YouTrip, etc;
2. Digital Payment Tokens such as cryptocurrency;
3. Non-Fungible Tokens ("NFTs");
4. Frequent Flyer Miles and other reward points balances.

Generally, assets which are not specifically provided for in the main terms of a Will are covered by the residuary clause of the Will, under which any and all property not specifically gifted to beneficiaries is given to specified beneficiaries in specified shares.

Given that the number of people who own some form of digital assets has risen considerably over the last few years, it would be wise to consider the question of how digital assets can be specifically provided for in a Will and practically managed for leaving behind as an inheritance.

Generally, whether something can be distributed under a Will or statutory laws turns on whether the thing is legally deemed as "property" or has characteristics of "property" to be dealt with as such.

In relation to stored value or money, Frequent Flyer Miles and other reward points balances, the analysis turns on the terms and conditions of the various issuers. Some may provide that on the death of a member, any miles or rewards points would be forfeited. Others may provide for some form of transfer or redemption mechanism.

The focus of this article is on how cryptocurrency can be distributed under a Will. There have been recent developments regarding the status of cryptocurrency as property in Singapore.

In Quoine Pte Ltd v B2C2 Ltd [2020] 2 SLR 20, the Singapore Court of Appeal did not need to make a finding on whether cryptocurrency was a species of property capable of being held on trust, but observed in obiter dicta that "there may be much to commend the view that cryptocurrencies should be capable of assimilation into the general concepts of property"² after surveying several authorities which support the recognition of cryptocurrency as a form of property.

In CLM v CLN and others [2022] SGHC 46, the Singapore High Court expressly made a finding that "cryptocurrencies satisfied the definition of a property right in Ainsworth"³ and consequently, stolen cryptocurrency assets could give rise to proprietary rights which could be protected by a proprietary injunction.

More recently, it was reported that the Singapore High Court had granted a worldwide injunction to prohibit the sale of a Bored Ape Yacht Club NFT.

Therefore, it is likely that in Singapore, cryptocurrency and NFTs will be classified as property and consequently can be passed under a Will or statutory law.

However, there are practical concerns as to how this would work. When "traditional" assets are distributed from the estate, the process is much more straightforward. The executors of the Will or personal administrators of the estate obtain a grant of probate or letter of administration. Real property is transmitted through conveyancing processes, bank and other accounts are closed and the balances transferred, and physical items are handed over. The personal administrators may also write to financial institutions to obtain information about the deceased's assets, if any, which are held with the institution. What then happens in respect of cryptocurrency?

Cryptocurrency and other digital tokens are typically stored in a digital wallet. This digital wallet is secured by two cryptographic keys, a public key which identifies the person it belongs to, and a private key which unlocks the digital wallet. Alternatively, a person could also keep their digital tokens in cold storage, which takes them offline, with the aim of making it more secure. A person's digital tokens may also be stored on accounts held with intermediary or brokerage-style service providers such as CoinHako or Coinbase. Access to a person's digital tokens thus depends on how the tokens are stored.

Therefore, in the case of digital tokens, a person should take some practical steps to provide the personal administrators with the necessary information (such as login credentials, encryption keys, etc.) to enable them to access and distribute the digital tokens according to the Will or under intestacy rules. It would also be prudent for a person (when alive) to maintain an inventory of digital assets so that the personal administrators would know at least what assets are stored where and how they can access the same. Such information, however, should be securely kept so that no ill-willed person would be able to gain access to the digital assets and siphon them away.

Another consideration is that regardless of whether a digital item may be legally considered property, a person may nonetheless leave instructions and wishes in her Will. E.g., she instructs that her remains be scattered at sea. Similarly, a person may leave instructions in her Will on how certain digital accounts, items and information should be dealt with. For instance, email accounts could be closed or managed by a particular person; digital photographs and audio-video recordings could be given to certain family members.

Yet another practical issue is how personal administrators or family members may access digital devices and accounts after a person passes on without leaving behind information on login credentials. It is possible for personal administrators who have the necessary grant of probate or letter of administration and death certificate to make a request to the service provider. For example, Apple, in relation to iPhones, iPads and Apple ID accounts, will verify such documents and grant access to the Apple ID accordingly. Apple has since developed a Digital Legacy system wherein an Apple ID user can, when alive, appoint another person to inherit access under the digital legacy system. Such access is only permissible when the user has passed on.

In conclusion, digital tokens may be distributed as an inheritance to beneficiaries. This is not so clear with other forms of digital assets. It is therefore wise to leave clear instructions in one's Will regarding such assets and other digital things. Further, certain prudent steps as outlined above ought to be taken so that the subsequent distribution and management of the estate can be done expediently and with as little fuss as possible.