South Africans are growing their digital wealth. A recent survey by Singapore cryptocurrency exchange TripleA estimated there to be 5.8 million cryptocurrency owners in South Africa. Of these, 46% each hold more than R10 000 in crypto assets, while 12% own more than R100 000.
If you are a crypto investor, your “coins” are stored in a digital wallet of some sort – either a cold hardware wallet that you keep somewhere safe or an online wallet on a crypto exchange.
Whichever way you store your crypto, access to it is dependent on a unique digital key or password. Without the key, your crypto is useless, as Stefan Thomas, a programmer and Bitcoin enthusiast in the US, found out when he couldn't remember his key.
In the wallet are an irretrievable 7 002 Bitcoins, according to “The New York Times”, which are worth about $180 million, or about R3.3 billion at the current exchange rate.
Crypto may form only part of your digital assets. You may have important documents, digital books or family photos in the “cloud”. If you’re an influencer on social media with a large following, your account may also be considered an asset. These all form part of your estate and need to be considered when drawing up a will.
Brandon Sylvester, the client relationship manager at Sanlam Trust, says your will should encompass tangible and intangible assets, which include digital assets. However, the will itself cannot contain the keys or passwords to digital wallets or cloud storage accounts.
“A will becomes a public document once it is lodged with the Master of the High Court. Therefore, you cannot include the private keys and passwords in the will itself. It may, however, provide for the location or contact person that has access to the up-to-date keys and passwords,” Sylvester says.
He says you should bear in mind that the terms of service agreements with online service providers may restrict the transfer of digital assets.
“Therefore, applicable laws relating to privacy, cybercrime, and data protection must also be considered. In South Africa, these laws include the Protection of Personal Information Act, Financial Intelligence Centre Act, and Electronic Communications and Transactions Act,” Sylvester says.
Kyle Abrahams, an admitted attorney and legal adviser at BDO South Africa, reminds us that under the Estate Duty Act, crypto is seen as property. This means that estate duty and executor fees apply. He says the crypto currency should be declared at its trading value at the time of death, not when it was realised.
Abrahams recommends a two-pronged approach to your estate planning when it comes to your crypto assets:
STEP 1: CLAUSE IN YOUR WILL
Include a clause in your will detailing how you want your crypto assets to be distributed. “The clause can follow the same format as the rest of your will: you simply have to detail who should inherit your crypto assets and in what ratio,” Abrahams says. He suggests you include an explanation, worded along these lines: “My cryptocurrency might be stored on digital wallets, paper wallets, online exchanges, or a combination of wallets and exchanges or any other crypto digital platform. The following items or devices might contain a cryptocurrency wallet: (name of item/device and type of cryptocurrency). These items shall not be distributed to any person until such time as the cryptocurrency or any information related to the access of my cryptocurrency is transferred to (nominated beneficiary).”
Abrahams says it is also important that you specifically state in your will that you have created a separate letter of directions that explains how to access your crypto wallets and accounts. You should also mention where this letter is held – typically with the executor.
STEP 2: LETTER OF DIRECTIONS
Create a separate letter of directions to a nominated beneficiary or the executor of your estate, which explains where and how to access your crypto assets. “This letter should detail where all of your crypto assets can be found and must include the keys, usernames and passwords required to unlock them. Depending on who will be inheriting your crypto, it is probably a good idea to include detailed instructions on how to convert the crypto into cash should your beneficiary opt for such,” Abrahams says. He says it is of utmost importance that this letter of instructions is not filed with your will. “Including this information in your will is akin to giving your ATM pin to strangers!” he says.
As a crypto holder, Abrahams says, you have to declare your crypto assets in your tax assessments. Gains are subject to capital gains tax or income tax, depending whether the South African Revenue Service categorises you as an investor or a trader.
Once you declare crypto in your tax assessments, these are used in administration of the deceased estate, which must be tax compliant before assets can be distributed to beneficiaries.
GREYLISTING IS FORCING DISCLOSURE
Kyle Abrahams at BDO says that in his experience, the Master of the High Court has not been inundated with cryptocurrency matters and therefore many executors or agents choose not to disclose crypto assets in the liquidation and distribution account.
“We have seen that the Master has accepted this, even to the point where Sars has issued a tax clearance certificate without disclosing the cryptocurrency. And that is simply because there is no precedent set as yet for matters like this, even though it is regulated.”
However, he says South Africa’s greylisting by the Financial Action Task Force is forcing the issue, and you should now be “very cautious” about not disclosing your crypto assets. Crypto in particular is seen as a platform for money laundering and terrorist financing.
“Crypto may seem to ‘get past’ certain regulatory bodies in South Africa, who may not be familiar with its recent financial nature as yet. However, as part of combating money laundering and terrorist financing, we are anticipating that failure to disclose such intangible assets may result in punitive costs for that individual or his estate,” Abrahams says.
* Hesse is the former editor of Personal Finance