By Nancy Burner, Esq.
Although cryptocurrencies like bitcoin have gone mainstream, non-fungible tokens (NFTs) were relatively unknown until 2021. You may have heard about “Bored Apes,” “Crypto Kitties” or that artist Beeple sold an NFT for $69 million. If you do not exactly understand what an NFT is, you are not alone.
Unlike cash, which is interchangeable, non-fungible items are one of a kind. An NFT is a unique digital asset built on a blockchain that comes with the right to use it. An NFT can be a photograph, animation, graphic image, video, meme, tweet, or anything digital. The value of the NFT lies in its uniqueness, which is attributable to its traceability on the blockchain.
The easiest to understand use of NFTs is when they represent real-world assets or serve as certificates of authenticity. For example, Nike distributing an NFT with every sneaker to protect against counterfeiting. Owning a multi-million dollar digitally generated avatar is a bit harder to grasp. But 1 out of 10 Americans invested in NFTs in 2021, so even if the appeal escapes you, the concept of scarcity should be familiar.
What to do if your grandson gifts you an NFT for Christmas or grandma sends an NFT as a birthday present? Keep the password safe! NFTs reside in “digital” wallets, which are stored on a computer, flash drive, or an app on your phone. You must have the private key or seed phrase (at least 12 unrelated words) to access the wallet. This private phrase is the only way to retrieve the NFT.
Whether you buy the NFT or it is gifted, the basis in the asset is the purchase price. Just like stock or real estate, the basis (purchase price) is used to calculate the capital gain or loss for tax purposes when the item is sold. Likewise, the NFT gets a step up in basis to fair market value at the owner’s death.
NFTs pass like any other asset at death — if you can find them. Unless the private key is known, there is no way of accessing and gaining ownership. We recommend redundancy. Write the phrase down and store it some place safe, keep it in a password protected file on a computer and flash drive. Since there is no central repository to verify ownership of an NFT, we advise clients to make specific bequests of an NFT in their wills. Calling attention to it ensures that the Executor at least knows of its existence. Do not include the password of course, since a will becomes public after probate!
You can also hold an NFT in a Trust or Limited Liability Company (LLC). An NFT cannot be retitled in the name of a Trust — but you can transfer the NFT on paper, much like we do with stocks and LLC interests. Some practitioners champion using an LLC because it is easier to transfer compared to transferring the NFT on the blockchain. However, avoiding recording the transfer on the public ledger defeats the purpose of transparency and authenticity. There are other advantages to an LLC to consider, such as transfer tax discounts and asset protection.
The future use, value, and regulation of NFTs is unknowable. Perhaps one day your Last Will & Testament will be stored in a digital wallet. For now, just make sure to disclose NFTs to your estate planning attorney, so she can incorporate them into your estate plan.
Nancy Burner, Esq. is the founder and managing partner of Burner Law Group, P.C. focusing her practice areas on Estate Planning, Elder Law and Trusts and Estates. Burner Law Group P.C. serves clients from Manhattan to the east end of Long Island with offices located in East Setauket, Westhampton Beach, NYC and East Hampton.Visit www.burnerlaw.com.
