According to a survey recently conducted by the Ontario Securities Commission, one in four Canadians now hold crypto assets or crypto funds: see OSCfinds growing awareness, ownership and optimism toward crypto assets. This number is also forecast to rise, with 38% of those surveyed indicating that they were highly likely to purchase crypto assets in the future. As crypto assets become more common, wills and estates practitioners can expect the demand for estate planning inclusive of crypto assets to increase in the future.
Effective estate planning for crypto assets presents challenges not encountered with traditional property. Even if the deceased’s will expressly authorizes the estate trustee (or trustees) to collect and manage their crypto assets, such a clause on its own will not enable the estate trustee to collect the deceased’s crypto, nor will obtaining a certificate of appointment of estate trustee – additional measures will also be required.
Collecting Crypto Assets as an Estate Trustee
When administering an estate, a court order granting a certificate of appointment of estate trustee will be sufficient legal authority for financial institutions to provide access to the deceased’s financial assets, like bank accounts and investments. Crypto assets are different, however. A certificate of appointment will not guarantee access to crypto assets, even though the certificate confirms the estate trustee’s legal authority over the deceased’s property, including digital assets.
For example, a certificate of appointment will be ineffective for accessing crypto assets that were in the deceased’s self-custody. Such assets are typically accessible using a private key, which is a unique data code that functions as a password to allow access to cryptocurrency and digital assets on a blockchain network. If only the deceased held their private key, no central authority will be able to provide access to their crypto assets. Rather, an estate trustee will only be able to access and collect crypto assets in self-custody if they have the deceased’s private key.
Difficulties may also arise in cases where a third-party custodian or exchange also holds the private key for the deceased’s crypto assets. Depending on the terms of the service agreement signed by the deceased, a custodian may refuse to comply with a request for access to the deceased’s crypto assets. Moreover, there is no legislation in Ontario that expressly compels custodians to release digital assets to fiduciaries, like estate trustees, upon receiving a request.
If a custodian refuses to grant access to the deceased’s crypto assets, the estate trustee could apply to the court for an order to compel the custodian to provide access. Such an application was granted by the Court of King’s Bench of Alberta earlier this year in Wada Estate, 2026 ABKB 309, with respect to the deceased’s digital assets with Apple. The effectiveness of such orders against custodians located outside of Canada, however, is uncertain. Such custodians may refuse to comply with an order issued by a Canadian court granting access to crypto assets, and may instead require the estate trustee to obtain a court order in the jurisdiction where the custodian is located.
Providing Estate Trustees With the Means to Access Crypto Assets
For estate plans that include crypto assets, clearly it is imperative to provide the estate trustee with the means to access and take control of the deceased’s crypto assets, such as the deceased’s passwords or private keys. Because probated wills become public documents, passwords and private keys should never be included in the will itself. If information needed to access the deceased’s crypto assets is included, there is a risk that the information could be utilized by anyone who has access to the will.
This information should instead be included in a precatory memorandum that accompanies the will. Because a precatory memorandum is not submitted for probate, it remains private and substantially reduces the risk that third parties could obtain information needed to access the deceased’s crypto assets. Information pertaining to crypto assets that could be included in a precatory memorandum include:
- the types of crypto assets held by the testator,
- particulars of the testator’s digital wallets, passwords and private keys, and
- details regarding how to access and realize the value of the testator’s crypto assets.
For more tips regarding drafting precatory memorandums generally, see our latest Solicitor’s Tips on point – Practical Tips for Drafting Precatory Instruments and Tips for Estate Planning with Precatory Memorandums.
What Happens to Testamentary Gifts of Inaccessible Crypto?
If an estate trustee is not provided with the deceased’s passwords and private keys and is unable to access the deceased’s crypto assets, a novel question arises – what happens to a testamentary gift of inaccessible crypto assets?
It is plausible that such testamentary gifts would adeem. Ademption occurs if the property described in a bequest in a will cannot be found among the testator’s assets at death – if, for example, the property has been lost or destroyed. Although inaccessible crypto assets would continue to exist on the blockchain, it could be argued that they cannot be “found among” the estate’s assets if the estate trustee has no ability to access or control them. At this time, however, it is uncertain whether a gift of inaccessible crypto assets would adeem, as there appears to be no direct Canadian case law on point.
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