Why can putting a cryptocurrency private key in a will create risk?

Keep transaction secrets out of broadly accessible records

SEC staff guidance advises against sharing private keys or seed phrases. Keeping them separate from broadly accessible asset lists is a practical security recommendation based on that guidance, which is educational and has no legal force.

Do not assume every will is public. The exposure risk described here depends on someone else being able to read the record containing the key.

Lifetime confidentiality and delivery after death are different

In Minnesota, for example, a will’s custodian must deliver it with reasonable promptness to an appropriate court after the testator’s death if an interested person requests delivery. That delivery duty does not itself establish public access. Other states differ.

In Minnesota, for example, a testator or the testator’s agent may deposit a will with any court for safekeeping under court rules. The deposited will must be sealed and kept confidential.

During the testator’s lifetime, delivery is limited to the testator or a person authorized by the testator’s signed writing.

A conservator or guardian may examine a protected testator’s deposited will under procedures preserving confidentiality to the extent possible and ensuring resealing and continued deposit.

After notice of death, the court may deliver the will to the appropriate court. These lifetime protections do not establish permanent confidentiality after death.

Possessing a key does not complete an executor’s appointment

In Minnesota, for example, acquiring a personal representative’s powers, duties and liabilities requires appointment by court or registrar order, qualification and issuance of letters, except as otherwise provided in article 4.

Estate administration commences when letters are issued. Naming someone executor or giving that person a key does not itself satisfy these appointment requirements.

A separate writing needs its own legal review

In Minnesota, for example, the separate tangible personal property list provision concerns items not otherwise specifically disposed of by the will. It excludes money, coin collections and property used in trade or business.

For admissibility, the will must refer to the list. The list must be in the testator’s handwriting or signed by the testator, and it must describe the items and recipients with reasonable certainty.

This limited provision does not authorize transferring cryptocurrency merely by naming a recipient in a credential list.

In Minnesota, for example, incorporation by reference requires a writing that exists when the will is executed. The will must manifest an intent to incorporate it and describe it sufficiently to identify it.

That provision does not authorize incorporation of a writing first created after execution. It provides no confidentiality protection for incorporated credentials.

Bring these questions to your attorney: Which document addresses the intended inheritance? Where should access instructions be kept? Who should be able to retrieve them?

Two related terms

Private key: SEC staff guidance describes a private key as a randomly generated alphanumeric passcode that authorizes cryptocurrency transactions.

Digital asset: In Minnesota, for example, chapter 521A defines a digital asset as an electronic record in which an individual has a right or interest. It excludes an underlying asset or liability unless that asset or liability is itself an electronic record.

EstatePlanner.com resources to open next

• Digital assets and property. Start here for the wider discussion of digital records, access instructions and cryptocurrency custody before reviewing individual documents.
• Digital estate records and questions checklist. Use this to organize questions about wallet locations, custody and recovery arrangements for your attorney meeting.
• Wills and probate. Open this alongside your will review to put the document and the estate administration discussion in context.
• Asset and authority map template. Use the template to structure a conversation about each holding and the authority documents you want your attorney to review.

A family conversation about cryptocurrency

One panel participant described different attitudes toward cryptocurrency across generations. Consider asking family members what they understand about the holdings and what questions they would bring to a planning meeting.

"I I don't well it's generational I think that if you're multigenerational family the newest generation is embracing crypto uh AI for sure um the older Generations whoever made the money much more skeptical probably is not invested in either of those things"

Frequently asked questions