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Lawyer's view: What happens if owner of the startup dies, after raising money through ICO?

29 August 2017 21:00, UTC

Dmitry MACHIKHIN, partner of GMT Legal, IMMO evangelist

According to LastWill data, about 110 owners of bitcoins die each day.

Along with the increasing popularity of cryptocurrency, there is a growing need to adapt them to traditional public institutions. No one likes to think, let alone talk about death. But as the Russian classic (Bulgakov) said: "Yes, man is mortal, but that would be only half the trouble. The worst of it is that he's sometimes unexpectedly mortal – there's the trick!" All the cryptocurrencies that you have mined, purchased through ICO, or bought on the exchange, can be lost. Of course, since the main way to access a cryptocurrency wallet is a personal key, you can simply transfer it to confidants for safekeeping (family, friends, relatives). But are there any legal commitments that your digital assets are guaranteed to be inherited?

In fact, not only cryptocurrency lacks understanding of inheritance process. This question concerns all digital assets, for example, domain names, social networks accounts, access to e-mail accounts, virtual money and points in various games and services. A digital asset is essentially the same asset we used to know. The problem is that the inheritance of digital assets, especially cryptocurrency, although it needs regulation, in most countries is not fixed. In Russia, for example, according to the Civil code, "the inheritance includes things belonging to the testator on the day of opening of the inheritance, other property, including property rights and obligations".

Cryptocurrency in Russia today can not be considered as any of these objects. Consequently, inheritance by law is impossible. Another format of inheritance, existing in most countries, is writing a will. In this document you can specify the keys for access to cryptocurrency wallets, which can be read by the heir when the will is opened by a notary. It should be noted, that if it is a closed will, then even a notary won't be able to get acquainted with its content when it is written, thus, the risks are minimized.

The most progressive jurisdiction regarding inheritance of crypto assets has been developed in the United States, namely, in Delaware, where the possibility of inheriting digital assets is enshrined in the law. However, a number of other states, for example, New Jersey, without directly referring to this issue, call for evaluating any assets in money terms and calculating the corresponding tax. From this point of view evaluation is not a problem at all.

As for the risks of the company or the beneficiary who had completed ICO and then passed away, without achieving the company's goals, it is necessary to determine whether the cryptocurrencies collected during ICO period were converted to fiat money. If so, then inheritance is a subject to a general rule. If not, see above.

Obviously, the issue of cryptocurrency inheritance is of growing importance, and I am convinced that people who are gone had thousands of bitcoins, ethereums, etc. stuck in their wallets forever.

Apart from well-drafted will, which was discussed above, special attention should be paid to the technological solution of this issue. Again, blockchain comes to the assistance: Lastwill project (lastwill.io) is essentially an electronic form of the will, implemented on the Ethereum smart contract, which allows safe and guaranteed transfer of your crypto assets to the designated person in the event of your death.