Updated 23 October 2026
Wills - Potential Problem #3: Overlooking Digital Assets
Cryptocurrency, an income-producing website or an online share portfolio can represent a substantial part of someone’s wealth. Family photographs and emails may have little financial value but be equally important to preserve. Your estate plan needs to identify these assets and records, establish who owns them and provide a lawful, practical way to deal with them after your death.
A will helps direct the distribution of estate assets. Secure access arrangements and reliable records help the executor find and administer them. Neither a password nor a broadly worded gift resolves every ownership, security or platform-access issue.
1. Christine on the changing conversations about digital wealth
I’m seeing cryptocurrency come up more often in estate-planning discussions. Websites and online trading accounts also need attention. People often have a clear picture of their property and bank accounts, but the information about their online assets can be scattered across different devices, emails and platforms.
My concern is practical: would your executor know what to look for? If the only person who understands the accounts is you, your family may not know what exists. I ask clients to think about who owns each asset, where the records are kept and how an authorised person could obtain access.
Safekeeping and record keeping are more important than ever. A will can say who should benefit, but someone still has to identify the holdings and follow the appropriate process. I want clients to leave their executor clear directions without putting sensitive credentials where other people can see them.
2. Build a digital asset inventory and check ownership
NSW Trustee and Guardian recommends recording digital accounts and ensuring the executor knows where to find that information. Include exchanges, wallets, trading platforms, domain registrations, hosting services and online payment accounts. Record the account holder, provider, identifying details, linked email address and location of supporting documents.
Separate personal assets from company, trust or superannuation holdings. Operating a website or controlling a wallet does not necessarily mean its contents belong to you personally. Your company shares may pass through your estate, while assets owned by the company remain its property. Joint accounts also require their own ownership analysis.
An asset does not automatically fall outside the will because it is not individually listed. A properly drafted residuary clause may cover it. However, the will can only dispose of interests forming part of your estate, and contractual or licensing restrictions may affect what can be transferred. Legal Aid NSW’s estate-distribution guidance explains specific gifts and the residue.
3. Cryptocurrency needs an access plan suited to its custody
Distinguish crypto held through a custodial exchange from crypto you control through your own wallet. An exchange may have a deceased-estate process. For example, Coinstash’s published requirements include a death certificate, probate or letters of administration, and a verified account for the estate representative. Those are that provider’s requirements; other platforms may differ.
For self-custody, the private keys or wallet recovery information may be essential. ASIC’s Moneysmart guidance warns that losing a private key usually means losing access to the crypto. A grant of probate cannot recreate missing cryptographic information.
Record the wallet type, relevant blockchain networks, locations of devices and the secure recovery arrangements. A public wallet address may help identify transactions but does not allow the executor to authorise transfers. Complex arrangements involving multiple signers, staking or decentralised finance need specialist instructions. Keep an access plan current whenever wallets, devices or security settings change.
4. Website ownership involves several separate rights
A website can involve a domain-name licence, hosting agreement, software, copyright, customer information and payment accounts. Check who holds each right. A developer may manage the site without owning the business, while a domain may be registered to an individual even though a company operates the website.
For a .au domain, registration provides a licence rather than outright ownership of the name. Under auDA’s Licensing Rules, rule 2.11.4 makes an executor responsible for an individual deceased registrant’s licence and requires a compliant transfer or cancellation within a reasonable timeframe. A proposed transferee must meet the applicable eligibility requirements.
Record the registrar, hosting provider, renewal dates, service contacts and authorised administrators. Keep backups and clarify ownership of website content and code. Arrange for someone with proper authority to maintain essential services during administration. Allowing a domain or hosting service to lapse may interrupt business income and make associated email records harder to retrieve.
5. Include online trading accounts and their records
A trading app may provide access to shares, cash, managed investments or other financial products. Record the broker, account number, account holder, holdings and any Holder Identification Number, or HIN. Preserve statements, transaction histories and details of linked accounts, outstanding orders and borrowing.
CommSec’s estate procedure illustrates why notification matters: it restricts trading on relevant individual accounts and verifies estate representatives before arranging sales or transfers. International holdings may require additional documents. Executors should contact the provider rather than continue trading under the deceased’s login.
A company trading account needs separate treatment. CommSec’s company-account guidance addresses updating directors and authorities after a director dies. The executor should identify the deceased’s legal interest and coordinate with the company or trustee instead of treating every displayed balance as personal estate money.
Keep passwords, private keys and seed phrases out of the will. Seed phrases are word sequences used to recover certain wallets. The Supreme Court of NSW’s access guidance explains that others can obtain copies of a deceased person’s will in prescribed circumstances. Arrange secure storage separately, with controlled access for the appropriate person when required. Avoid storing the only recovery instructions inside the account they are needed to unlock.
Plan for two-factor authentication and device recovery. Record where authorised recovery information is held, and tell the executor how to locate the instructions. Check the provider’s terms and estate process; possession of credentials alone does not establish ownership or permission to use an account.
Platform tools have limits. Apple’s Legacy Contact can allow access to certain data using an access key and death certificate, but excludes iCloud Keychain passwords and passkeys. Google’s Inactive Account Manager lets users arrange sharing of selected data after inactivity. These settings should complement the estate plan and reflect wishes about preservation, sharing or deletion.
7. A real Australian case shows the recovery difficulties
In ASIC v NGS Crypto Pty Ltd No 3 (2024), the Federal Court considered a challenge to protective orders involving cryptocurrency investments. The reasons addressed difficulties tracing assets and risks of funds being moved. At paragraph 51, the Court found the relevant statutory definitions sufficiently broad to cover cryptocurrency assets in appropriate circumstances at that interim stage.
This was a regulatory proceeding, not a probate dispute. Its relevance here is practical: identifying and protecting digital wealth can require substantial evidence. Executors benefit from reliable ownership and transaction records; legal proceedings cannot be assumed to recover assets whenever access information or records are missing.
8. Preserve transaction history and review the plan
The ATO’s crypto record-keeping guidance calls for records of purchases, transfers and disposals, including transaction dates. Preserve acquisition records and relevant Australian-dollar values, rather than relying only on the balance shown today. The accountant may need that history when dealing with the deceased’s and estate’s tax obligations.
Review the inventory with your will after significant changes. Check substitute executors, intended beneficiaries and access arrangements. Before closing an account or cancelling a service, establish whether its emails, statements or backups are needed for another asset. Keep a record of the executor’s eventual transfers, sales and account closures.
CM Lawyers assists clients in Marrickville, Sydney’s Inner West and across NSW with wills and estate planning. Contact our team to coordinate your digital asset instructions with your broader estate plan. This is general information; legal, tax and technical advice should address your particular holdings.
Key resources
