Digital assets, like Bitcoin, have provided a new asset class for investors and traders, minting new millionaires in the process.
Cryptocurrencies, DeFi and stablecoin staking, non-fungible tokens (NFTs) and other digital assets have given high-net-worth investors diversification, enhanced liquidity and the potential for significant appreciation (along with a hefty dose of risk).
Most business owners and entrepreneurs who come into wealth when they exit their companies will turn to wealth management and financial planning firms to help them with their newfound riches.
Sign up for Kiplinger’s Free E-Newsletters
Profit and prosper with the best of expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.
Profit and prosper with the best of expert advice - straight to your e-mail.
By stark contrast, a cryptocurrency whale who has suddenly come into great wealth tends to have a higher risk appetite and yet generally lacks the experience of handling the rigors and complexities of administrating their newfound abundance. The skill set it takes to create wealth is a very different skill set required to preserve and protect wealth.
Despite their advantages, digital assets for the inexperienced investor pose unique challenges. The regulatory environment for digital assets is still evolving, which can lead to legal uncertainties and potential compliance issues, including the arduous tax reporting and basis tracking rules promulgated by the IRS. Furthermore, the pseudonymity that attracts many to digital assets can complicate estate planning and asset transfer upon death or incapacitation.
Strategies for mitigating tax liabilities
Even when your cryptocurrency investments like Bitcoin pump, they are exposed to two significant threats: estate taxes at death and lawsuits from creditors and predators. Without advance estate tax planning, the value of your cryptocurrency holdings when you die could be subject to a 40% estate tax. If the predictions for the future value of Bitcoin are anywhere near accurate, without proper estate tax planning, your heirs could unexpectedly owe tens of millions or more in death taxes. That would require significant assets to be sold to cover the taxes due, depriving your beneficiaries of the future growth and benefits of owning Bitcoin and other cryptocurrencies.
Moreover, recent tax proposals aimed at lowering the national debt may further increase this burden. One potential strategy is to use your current (2024) lifetime gift tax exemption to transfer up to $13.61 million of assets you expect to appreciate (like Bitcoin) to a Nevada irrevocable third-party dynasty trust. Once in the trust, the value of your Bitcoin is removed from your taxable estate, and the taxman will not collect a penny of death taxes on this asset class for literally hundreds of years. However, it’s important to act before January 1, 2026, when the lifetime gift tax exemption will be reduced by half.
However, it’s important to act before January 1, 2026, when the gift tax exemption will be reduced by half.
For active traders, setting up an LLC to hold your cryptocurrency can be advantageous. By gifting the LLC interest to an irrevocable trust, you can avoid estate taxes on the appreciated value of your crypto. If your investment exceeds the gift tax exemption, consider selling the excess amount to the trust for a long-term promissory note. The note’s face value will be included in your estate, but the appreciation will not, providing substantial tax savings to your heirs.
Protecting against lawsuits
Lawsuits pose another significant risk of loss of your stack. Many HODLers, individuals who own and frequently trade in cryptocurrency, are unaware they can protect their digital assets from lawsuit creditors and litigators by using an LLC and an asset protection trust. By placing your LLC interest in the proper trust, your assets may be shielded from future unforeseen personal creditors.
Structured correctly, this strategy ensures that, absent fraud, your cryptocurrencies remain inaccessible to creditors following a lawsuit.
Conclusion
With tens of millions of lawsuits filed annually in the United States, and the majority settling for pennies on the dollar, it’s essential to remove financial incentives for becoming a defendant. Strategically implementing these legal strategies can provide options for protecting your wealth, ensuring your digital assets remain secure and preserving those gains for future generations.
If you have questions about digital assets and protecting yours, feel free to address them to author Jeffrey Verdon at JVerdon@frblaw.com, chair of the Comprehensive Estate Planning Group at Falcon Rappaport & Berkman LLP.
Related Content
- Digital Estate Planning Guide: Get Your Digital Assets in Order
- How to Prepare for Upcoming Estate Tax Law Changes
- Estate Plan Check-Ups: Don’t Just Set It and Forget It
- Estate Planning Checklist: Five Tasks to Prioritize
- The Three Basic Components of a Good Estate Plan
-
The $33,000 Retirement: One Man's Surprising Path to Financial Freedom at 61Forget what society tells you, even with less than $1 million, you can be happy in retirement.
-
The Best Aerospace and Defense ETFs to BuyThe best aerospace and defense ETFs can help investors capitalize on higher government defense spending or hedge against the potential of a large-scale conflict.
-
Roth IRA Conversions in the Summer? Why Now May Be the Sweet SpotConverting now would enable you to spread a possible tax hit over more than one payment while reducing future taxes.
-
A Financial Expert's Three Steps to Becoming Debt-Free (Even in This Economy)If debt has you spiraling, now is the time to take a few common-sense steps to help knock it down and get it under control.
-
I'm an Insurance Expert: This Is How Your Insurance Protects You While You're on VacationHere are three key things to consider about your insurance (auto, property and health) when traveling within the U.S., including coverage for rental cars, personal belongings and medical emergencies.
-
Investing Professionals Agree: Discipline Beats Drama Right NowBig portfolio adjustments can do more harm than good. Financial experts suggest making thoughtful, strategic moves that fit your long-term goals.
-
'Doing Something' Because of Volatility Can Hurt You: Portfolio Manager Recommends Doing This InsteadYes, it's hard, but if you tune out the siren song of high-flying sectors, resist acting on impulse and focus on your goals, you and your portfolio could be much better off.
-
Social Security's First Beneficiary Lived to Be 100: Will You?Ida May Fuller, Social Security's first beneficiary, retired in 1939 and died in 1975. Today, we should all be planning for a retirement that's as long as Ida's.
-
An Investment Strategist Demystifies Direct Indexing: Is It for You?You've heard of mutual funds and ETFs, but direct indexing may be a new concept ... one that could offer greater flexibility and possible tax savings.
-
Q2 2025 Post-Mortem: Rebound, Risks and Generational ShiftsAs the third quarter gets underway, here are some takeaways from the market's second-quarter performance to consider as you make investment decisions.
