Crypto Assets In Trusts And Foundations

Published in association with STEP, Crypto Assets in Trusts and Foundations features an in-depth examination of 20 important trust and foundation jurisdictions, shedding light on their respective regulations concerning the holding of crypto assets in wealth management structures.

1. LEGAL STATUS OF CRYPTO ASSETS

The legal status of crypto assets is important as proprietary rights will attach to crypto only if it is property under Bermuda law. Bermuda law defines property in the same way as English law, relying on the criteria in National Provincial Bank v Ainsworth¹ and the English cases that have followed it. If crypto is property, proprietary remedies can also be pursued (ie, injunctive relief, tracing applications) and it can be protected in the event of insolvency. From a trusts perspective, only property can form the subject matter of a trust. 'Trust property' has generally been described as any type of property that is 'real or personal' and capable of being ascertained, such as cash, land, securities and interests in property, including interests under other trusts. Trustees have had to grapple with how crypto assets can form trust property based on the understanding that they are designed to work as a medium of exchange through the use of cryptography with the consequence that they do not fit neatly into the two existing property categories, namely choses in action or choses in possession. English legal authorities have found that cryptocurrencies are a form of property and can be owned by a trust. In June 2023 the Chief Justice of the Supreme Court of Bermuda found, in an unreported case involving BlockFi, that digital assets are capable of being treated as property under common law. The decision was made in the context of a company liquidation involving several different digital assets. The court was trying to determine whether digital assets formed part of the liquidation estate. In reaching his decision the Chief Justice placed reliance on His Majesty's High Court of Justice in England's decision in AA v Persons Unknown re: Bitcoin.² In that case the court determined that Bitcoin (and other similar cryptocurrencies) could be considered property and therefore could be the subject of a proprietary injunction and, therefore, of a trust.

2. RELEVANT LAWS, REGULATIONS, ADMINISTRATIVE GUIDANCE AND COURT CASES

Bermuda was one of the first jurisdictions to introduce a comprehensive legal and regulatory framework governing digital asset businesses. In 2018 Bermuda introduced the Companies and Limited Liability Company (Initial Coin Offering) Amendment Act 2018 and the Digital Asset Business Act 2018, as amended, both accompanied by corresponding regulations and the Code of Practice and the Digital Asset Custody Code of Practice (made pursuant to the Digital Asset Business Act), with the aim of Bermuda becoming a global leader in the digital assets arena.

The Digital Asset Business Act regulates digital asset business conducted in or from within Bermuda such that businesses are required to obtain licences in one of the classes specified below. Circumstantially, digital asset businesses may receive an exemption order from the Bermuda Monetary Authority (BMA) to waive the licence requirement. There are also provisions for the waiver of part or all the Digital Asset Business Act licence fees in certain circumstances.

A person carries on digital asset business in or from within Bermuda if they: (i) are incorporated or formed in Bermuda and carry on any digital asset business activity; or (ii) are incorporated or formed outside of Bermuda and carry on any digital asset business activity in or from within Bermuda.

A digital asset business for the purpose of the act is a business which engages in any of the following activities and provides such activities to the general public:

• issuing, selling or redeeming virtual coins, tokens or any other form of digital asset;
• providing custodial wallet services;
• operating as a payment service provider business using digital assets including the provision of services for the transfer of funds; or
• operating a digital asset exchange, digital asset services vendor, digital asset benchmark administrator, digital asset derivative exchange provider, digital asset trust services provider or operating as a digital asset lending or digital asset repurchase transactions service provider.

'Custodial wallet service' is defined as the provision of storage or maintenance of digital assets or virtual wallets on behalf of a client. 'Wallet' is defined as a software program that stores private and public keys and interacts with distributed ledger technology to enable users to send, receive and monitor their digital assets; whereas 'distributed ledger technology' is defined as a database system in which information is recorded and consensually shared and synchronised across a network or multiple nodes and all copies of the database are regarded as equally authentic.

'Digital asset exchange' is defined as a marketplace used for digital asset issuances, distributions, conversions and trades including primary and secondary distributions with or without payment.

'Digital asset services vendor' is defined as a person who: (i) under an agreement as part of its business undertakes a digital asset transaction on behalf of another person or has power of attorney over another person's digital assets; (ii) operates as a market maker for digital assets; or (iii) operates as a digital asset benchmark administrator.

A 'market maker' is defined as a person conducting the business of trading in digital assets including: (i) quoting buy and sell prices in furtherance of profit or gain on the bid offer spread; (ii) fulfilling orders initiated by clients or in response to clients' requests to trade; or (iii) hedging positions arising from the fulfilment of tasks mentioned in (i) or (ii).

'Digital asset benchmark administrator' is defined as a person who controls a digital asset benchmark, being an index or a figure, used to calculate the amount payable under a digital asset.

'Digital asset derivative exchange provider' is defined as a person that creates a marketplace for digital asset derivative issuances, distributions and trades.

'Digital asset trust services provider' is defined as a person who carries on the business of acting as a fiduciary, agent or trustee on behalf of another person for the purpose of administration and management of a digital asset.

'Digital asset lending transaction' is defined as a transaction by which a counterparty transfers or lends digital assets to a borrower subject to a commitment that the borrower will return equivalent digital assets with or without interest or premium on a future date; or when requested to do so by the lender.

'Digital asset repurchase transaction' is defined as a transaction governed by an agreement by which a counterparty transfers digital assets to a counterparty subject to a commitment to repurchase them or substituted digital assets of the same description at a specified price with or without premium, on a future date specified, or to be specified from that counterparty.

'Digital assets' are defined as anything which exist in binary format, come with the right to use it, and include a digital representation of value that:

• is used as a medium of exchange, unit of account or store of value and is not legal tender;
• is intended to represent assets such as debt or equity in the promoter;
• is otherwise intended to represent any assets or rights associated with such assets; or
• is intended to provide access to an application or service or product by means of a distributed ledger technology.

But does not include:

• a transaction in which a person grants value as part of an affinity or rewards programme, whereby value cannot be taken from or exchanged with the person for legal tender, bank credit or any digital asset; or
• a digital representation of value issued by or on behalf of the publisher and used within an online game, game platform or family of games sold by the same publisher or offered on the same platform.

Virtual currencies form a part of the wider legal definition of digital assets used in Bermuda.

Generally, a licensed trust company holding crypto assets directly on the terms of a Bermuda trust on behalf of beneficiaries, will be considered a 'digital asset trust service provider' in the business of a fiduciary/agent/trustee on behalf of another and would require a Digital Asset Business Act licence. This will not apply to individual trustees. The position is less clear with respect to private trust companies, but the thinking is that as a private trust company is not in the business of offering its services to the public, a Digital Asset Business Act licence should not therefore be required. In any event it is often preferable for crypto assets to be held through an underlying company which is not holding on behalf of others and will not require a licence.

The legal system in Bermuda is based on English common law and principles of equity, supplemented by domestic legislation. The case law of England and Wales is highly persuasive, as is case law from other leading common law jurisdictions, including Australia, the Cayman Islands and the British Virgin Islands. Bermuda has a well-established judiciary. For trust matters, the Supreme Court of Bermuda is the first-instance court followed by the right of appeal to the Court of Appeal in Bermuda. The Privy Council in London is Bermuda's final court of appeal.

We are unaware of any reported cases in Bermuda considering crypto assets. We expect the Bermuda courts will consider and follow the decisions in the other leading common law jurisdictions, providing they are compatible with the Digital Asset Business Act.

As set out above, the Bermuda court has indicated in an unreported judgment that crypto is property, based on English case law on that issue. We expect the following English decisions will also be persuasive in Bermuda:

• Fetch.ai Ltd v Persons Unknown:³ His Majesty's High Court of Justice in England (HHJ Pelling QC, sitting as a judge of the High Court) found the lex situ of crypto is likely to be the country where the owners of the crypto are domiciled. The court relied on the earlier unreported decision in Ion Science v Persons Unknown.
• D'Aloia v Persons Unknown:⁴ His Majesty's High Court of Justice in England (Mr Justice Trower) permitted alternative service in a crypto fraud case, allowing documents to be served by way of non-fungible token airdrop, thereby embedding the service of the documents into the blockchain.
• Tulip Trading Limited v van der Laan:⁵ The Court of Appeal (England and Wales) (Lord Justice Birss) concluded that there was a "serious issue to be tried" in respect of whether the developers of the four major Bitcoin networks owed fiduciary duties to Bitcoin owners with the consequence that they were obliged to assist in the recovery of their property by way of introducing a software patch. The court stressed that "the internet is not a place where the law does not apply", leaving open the possibility that new fiduciary and other legal relationships have developed alongside the development of crypto and the infrastructure around it.

3. LEGAL AND PRACTICAL ISSUES REGARDING THE INHERITANCE OF CRYPTO ASSETS

Crypto and other digital assets differ from traditional assets in several respects. Executors can find, see, collect and take control of traditional assets fairly easily. Digital assets on the other hand may be difficult to locate or access, particularly if they are on devices and are password protected. In addition, executors may be prevented from accessing digital assets due to privacy laws in certain countries.

Estate planning for crypto and other digital assets is just as important as planning for other assets and similar considerations will apply. Digital assets could be placed in an inter vivos trust to be managed by trustees or passed to beneficiaries under a will following death. However, as a will becomes a public document in Bermuda once probated, it is advisable not to list sensitive information or passwords (which often become outdated quite quickly in any event) or other private information in a will. Instead, this information should be listed in a separate confidential document, which should be stored in a secure place. If it is stored with a will, in a lawyer's safe, for example, it will be available to the executors on the testator's death. Alternatively, passwords and other confidential information could be stored on a flash drive, the cloud or by a digital online afterlife management company, or online password vault with online safety deposit box. Loss of passwords or other authentication tools means the asset is lost to the owner or executor permanently, so it is important to ensure that personal representatives can access crypto through digital wallets or private key.

It is possible to establish dynastic trusts in Bermuda,⁶ thereby avoiding the need for probate which may be beneficial from an estate and tax-planning perspective. The value of crypto assets placed in a trust, if properly structured and administered by competent trustees, can be safeguarded and protected for generations to come. A trust can be easier to amend than a will after death. Also, a trust does not become a public document in Bermuda, like a will once it is probated, and can be kept private and confidential. It can therefore be more suitable than a will in many ways for retaining account information. The trustees can be provided with detailed instructions regarding management and disposition of the digital property by way of a confidential settlor's letter or memorandum of wishes.

Many people now consider a separate will (perhaps a social media will) to cover certain digital assets. However, often a properly drafted will, usually containing an express clause concerning digital assets or enabling provisions and possibly naming a special executor with powers to deal with digital assets, will be sufficient.

The estate of a deceased person owning Bermuda assets or being ordinarily resident in Bermuda may incur stamp duty where an application for a grant is submitted to the Supreme Court of Bermuda. No stamp duty will be payable on death if a grant is not required. Where an application for a grant is made, stamp duty is payable on the net value of the deceased's Bermuda dollar assets.⁷ The first $100,000 of a net Bermuda dollar estate is exempt from stamp duty, the next $100,000 is 5.25%, the next $800,000 is 10.50%, the next $1 million is 15.75% and anything over $2 million is 21%. There is no stamp duty on non-Bermuda dollar assets or on bequests to spouses or charities.

Stamp duty is payable on gifts of immovable Bermuda dollar denominated assets and shares in local Bermuda companies which are not listed on the Bermuda Stock Exchange, on an ad valorem basis from 2.1% to 7.35%. Stamp duty is payable on the instrument which effects the transfer of the property.

In most cases crypto assets will be considered non-Bermuda property for stamp duty purposes.

4. LEGAL AND PRACTICAL ISSUES FOR A TRUST/FOUNDATION ACQUIRING CRYPTO ASSETS

Trust law in Bermuda substantially reflects English law and accompanying principles of equity, with modern enhancements. Bermuda's primary trust legislation consists of:

• the Trustee Act 1975, which sets out the trustee's and court's powers and the trustee's entitlements and duties; and
• the Trusts (Special Provisions) Act 1989, which sets out Bermuda's reserved powers, firewall and purpose trust provisions.

Trustees should be mindful of all of the regulatory and tax implications surrounding crypto assets, taking into consideration the fundamental principle stated in Speight v Gaunt that "as a general rule a trustee sufficiently discharges his duty if he takes in managing trust affairs all those precautions which an ordinary prudent man of business would take in managing similar affairs of his own".⁸ Therefore, it is vitally important for trustees to thoroughly scrutinise crypto and other such forms of digital assets that they wish to invest in or hold on the terms of the trust, to ensure they are acting in the best interest of the beneficiaries and of the trust as a whole, and that they are discharging their fiduciary duties effectively.

In terms of drafting, it is often prudent to include express provisions in Bermuda trusts to provide trustees with power to invest in, access, hold and manage crypto assets and to address the custody and safekeeping of such assets. Special provisions may also be included in trust deeds for the assets and liabilities of certain assets to be segregated from other assets of the trust, as a form of comfort to its investors. As Bermuda trust law allows for the appointment of a 'managing trustee',⁹ trustees may also wish to include specific provisions whereby the management of the crypto or digital assets are exercised solely at the discretion of the managing trustee to mitigate the non-managing trustee's liability. Non-managing custodian trustees, who hold title to the trust assets, are not liable for the managing trustees' decisions, acts or transactions which are within the powers reserved to the managing trustee.

As fiduciaries, trustees holding crypto assets should assure their investors and regulators that they have adequate procedures in place to ensure the security and storage of the access codes to the crypto assets. Trustees will want strong indemnity clauses, insurance provisions and forum clauses (to prevent legal uncertainty). Trustees holding crypto assets can further protect themselves if they are directed to undertake certain actions by the settlor or someone else holding reserved powers, or where they require consent. Bermuda trust laws allow for reserved powers or settlor directed trusts.¹⁰ A trustee who has acted, or refrained from acting, in compliance with a valid exercise of any of the powers reserved and/or granted to the settlor or third parties, can be absolved from any liability for breach of trust.

Where professional trustees of a Bermuda trust are to acquire crypto assets, it is generally advisable for the crypto assets to be held through an underlying company to provide added protection and to avoid the need for a Digital Asset Business Act licence. Depending on the size of the portfolio and the investments proposed, it may be prudent to have experts in crypto assets on the board of directors and to establish internal crypto and IT risk committees. The shareholder trust should also contain strong anti-Bartlett provisions to confirm that the trustee is not bound or required to interfere in the management or conduct of the underlying company, which is left to its directors.

In general, trustees should be aware of the potential market risk element of investing in crypto, the potential for crypto to lose value and the reputational damage to a licensed trustee if that materialises.

5. LEGAL AND PRACTICAL ISSUES FOR A TRUST/FOUNDATION REGARDING THE CUSTODY OF CRYPTO ASSETS

Safe custody and storage of crypto assets is paramount. Cold storage (ie, storage on media not connected to the internet) is best practice. If the private key is lost, it will no longer be possible to access the crypto. Trustees must carefully scrutinise custody services, how crypto is held and where it is held. Ideally, they are held by a traditional asset custodian which is a regulated financial institution holding assets in its custody on behalf of others to minimise the risk of theft or loss. They are insured (so the owner of the asset has some protection in the event that the asset is lost), they employ financial experts who understand the market and the type of assets that they are holding, and they are strictly regulated by the BMA. All these benefits apply equally to digital assets.

In 2019, the BMA released a code of practice for digital asset custody, which outlines the regulatory requirements digital asset businesses must meet to hold client assets. The code provides guidance on how the BMA regulation will vary depending on which form of storage is used by the digital asset business. The following three areas of custody governance are essential for ensuring the security and integrity of digital assets. By implementing appropriate standards and procedures in each area, custodians can help to protect their clients' assets from theft, loss and fraud.

5.1 CUSTODY SAFEKEEPING

Custody safekeeping:

• specifies how seeds and keys are generated and secured, and how addresses and wallets are managed; and
• includes recovery protocols for compromised or corrupted seeds and keys, as well as fraud prevention measures.

5.2 CUSTODY TRANSACTION HANDLING

Custody transaction handling:

• dictates specific protocols for facilitating inbound and outbound transactions of an asset in custody; and
• ensures that proper due diligence is performed before transactions are authorised.

5.3 CUSTODY OPERATIONS

Custody operations:

• specify operational policies and procedures, reporting, and operational risk management specific to digital asset custody; and
• includes traditional practices of operational risk management and fraud prevention from the financial services industry.

Some additional considerations for custody governance include:

• physical security of the assets, including the facilities, where they are stored and the devices used to access them;
• cybersecurity measures to protect against cyberattacks;
• business continuity plans to ensure that operations can continue in the event of a disruption; and
• auditing and reporting to ensure that the custody arrangements are being properly implemented and maintained.

By taking these considerations into account, custodians can help to create a secure and compliant environment for the safekeeping of digital assets.

The BMA requires a licensed digital asset business to hold not less than 90% of client private keys in cold storage unless they are being actively used. The Digital Asset Business Act requires that a digital asset business holding client assets maintains a surety bond, trust account or indemnity insurance for the benefit of its client approved by the BMA.

6. ANTI-MONEY LAUNDERING OBLIGATIONS

Digital asset businesses are required to comply with anti-money laundering and anti-terrorist financing legislation and licensed businesses under the Digital Asset Business Act must adopt and comply with a comprehensive anti-money laundering policy.

The BMA has published sector specific guidance notes for digital asset businesses (DABs). Here is a summary of some of the main anti-money laundering and anti-terrorist financing regulations which DABs in Bermuda should consider:

• senior management of DABs have a responsibility to ensure compliance with the anti-money laundering and anti-terrorist financing regulations;
• DABs must identify, assess and mitigate the money laundering and terrorist financing risks that they face;
• DABs must establish and maintain detailed risk-based policies, procedures and controls to prevent money laundering and terrorist financing;
• DABs must appoint a compliance officer and a reporting officer;
• DABs must screen employees against high standards;
• DABs must ensure that adequate resources are devoted to anti-money laundering and anti-terrorist financing compliance;
• DABs must audit and test their anti-money laundering and anti-terrorist financing policies and procedures regularly;
• DABs must recognise potential personal liability for non-compliance;
• DABs must communicate their anti-money laundering and anti-terrorist financing policies and procedures to all their branches, subsidiaries and representative offices; and
• DABs must ensure that their anti-money laundering and anti-terrorist financing measures are at least equivalent to those set out in the Bermuda anti-money laundering and anti-terrorist financing acts and regulations.

The penalties for non-compliance with the anti-money laundering regulations are severe and can include fines, imprisonment and the loss of a licence. DABs should carefully review the anti-money laundering regulations and implement appropriate measures to ensure compliance.

In addition, a DABs compliance department should keep in mind that:

• the anti-money laundering regulations are complex and constantly evolving – DABs should stay up to date on the latest developments and consult with an experienced anti-money laundering compliance professional if they have any questions;
• the anti-money laundering regulations are designed to be risk-based. DABs should assess their own money laundering and terrorist financing risks and implement proportionate measures to mitigate those risks; and
• the anti-money laundering regulations are not just about compliance – DABs should also take steps to promote a culture of anti-money laundering compliance within their organisation, including training employees on anti-money laundering risks and procedures, and creating a reporting system for suspicious activity.

By following the anti-money laundering regulations, DABs can help to prevent money laundering and terrorist financing and protect their businesses from reputational and financial risks.

7. TAX CONSEQUENCES OF TRANSFERRING CRYPTO ASSETS TO A TRUST/FOUNDATION

There may be stamp duty implications on a transfer of property to a Bermuda law trust under the Stamp Duties Act 1976. Bermuda property settled on a Bermuda trust incur stamp duty at the follow rates:¹¹

• $250 plus the first $50,000 is exempt from stamp duty;
• the next $150,000 is 5.25%;
• the next $800,000 is 10.5%; and
• anything over $1 million is 15.75%.

Trusts of non-Bermuda property which are executed by a local trustee are exempt from stamp duty in respect of most transactions. In most cases crypto assets will be considered non-Bermuda property. Settlements to which an international business (such as an exempted company acting as a private trust company) is properly a party are exempt by reason of the Stamp Duty (International Businesses Relief) Act 1990. Transactions in shares in Bermuda exempted companies are not subject to stamp duty.

8. INCOME AND CAPITAL GAINS TAX CONSEQUENCES OF A TRUST/FOUNDATION TRADING CRYPTO ASSETS

There is no income or capital gains tax in Bermuda.

9. INCOME TAX CONSEQUENCES OF A TRUST/FOUNDATION STAKING CRYPTO ASSETS

There is no income tax in Bermuda.

10. WEALTH TAX CONSEQUENCES OF A TRUST/FOUNDATION HOLDING CRYPTO ASSETS

There is no wealth tax in Bermuda.

11. DOCUMENTARY REQUIREMENTS

As mentioned above, there is no capital gains tax in Bermuda. As such, the documentary requirements which apply to trusts holding crypto assets are limited and will depend on the nature and scale of the crypto asset transactions, if any.

Pursuant to the Digital Asset Business Act, a licensed undertaking must maintain and provide access to the digital asset transaction records. This record of transactions must be held for at least five years from the date that the transaction was conducted.¹²

If the professional trustee plans to hold crypto assets directly and if it is determined that a Digital Asset Business Act licence is required, an application will be made to the BMA. There are different classes of digital asset business licence that may be applied for, namely:

• Class F licence, under which the applicant will be licensed to provide any or all the digital asset business activities;
• Class M licence, under which the applicant will be licensed to provide any or all the digital asset business activities for a defined period determined by the BMA which may be extended on application to the BMA. Beta testing of the systems of a digital asset business may also fall under the Class M licence category where third parties are involved in the testing process; or
• Class T licence, under which the applicant will be licensed to provide a specific set of digital asset business activities for a defined period determined by the BMA. Testing and piloting a business model, a product or a service which is still unproven generally or in a specific context.

Both Class F and Class M licence applications must be accompanied by:

• a business plan setting out the nature, scale and complexity of the digital asset business activity to be carried out by the applicant;
• particulars of the applicant's arrangements for the management of the business;
• policies and procedures to be adopted by the applicant to meet the obligations of the Digital Asset Business Act and the Proceeds of Crime (Anti-Money Laundering and Anti-Terrorist Financing) Regulations 2008;
• any such other information and documentation as the BMA might reasonably require for the purpose of determining the application; and
• payment of an application fee.

A licence issued under the Digital Asset Business Act may be subject to limitations as to the scope of the digital asset business activity, or to the manner of operating the digital asset business, in such a way as the BMA considers appropriate commensurate to the nature, scale and complexity of the proposed business.

The BMA will not grant a licence unless it is satisfied that the minimum criteria is met and the company:

• has controllers and officers who are fit and proper persons;
• has policies and procedures including those in relation to anti-money laundering and anti-terrorist financing;
• maintains minimum net assets of $100,000 or at such an amount as the BMA determines appropriate commensurate to the nature, scale and complexity of the business;
• maintains adequate accounts or other records and adequate systems of control for its business and records;
• has insurance to cover the risks inherent in the operations of its business of an amount commensurate to the nature, scale and complexity of the digital asset business or it has implemented such other risk mitigation measures as the BMA agrees; and
• is effectively directed by at least two persons and has the number of non-executive directors as the BMA considers appropriate to the nature, size, complexity and risk profile of the licensed company.

A licensed undertaking is also required to maintain a head office in Bermuda from which the digital asset business of the licensed undertaking must be directed and managed. In determining whether a licensed undertaking complies with this requirement the BMA will consider, among other factors:

• where the strategy, risk management and operational decision-making of the licensed entity occurs;
• whether the senior executives who are responsible for, and involved in, the decision-making related to digital asset business of the licensed entity are located in Bermuda; and
• where meetings of the board of the licensed undertaking occur.

First published in Globe Law and Business, Crypto Assets in Trusts and Foundations, June 2024

Footnotes

1. [1965] 1 AC 1175 – "Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be (i) definable, (ii) identifiable by third parties, (iii) capable in its nature of assumption by third parties, and have (iv) some degree of permanence or stability."

2. [2020] 4 WLR 35.

3. [2021] EWHC 2254.

4. [2022] EWHC 1723.

5. [2023] EWCA Civ 83.

6. Perpetuities and Accumulations Act 2009.

7. Head 2, Schedule to Stamp Duties Act 1976.

8. [1883] 9 App Cas 1 HL.

9. Section 30A of the Trustee Act.

10. Section 2A of the Trusts (Special Provisions) Act 1989.

11. Head 40, Schedule to Stamp Duties Act 1976.

12. Section 71 of the Digital Asset Business Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.