The subject of digital inheritance deals with the relationship with everything that is digital, even Bitcoin, NFT and cryptocurrencies are targets of inheritance law. To share its knowledge on the subject and review a recent inheritance case in Brazil that refers to the subject, Livecoins spoke with lawyers specializing in the field of Estevan Facure Giaretta.

Since he is also an expert in cases involving cryptocurrencies, he explains how inheritance law relates to these technologies.

How does the concept of digital heritage relate to Bitcoin, NFT and other cryptocurrencies?

Estevan: The concept of digital legacy includes everything the deceased left behind on digital platforms, from simple Facebook posts, emails or tweets, to cryptocurrencies, NFTs and monetized videos on YouTube.

Thus, when a person dies, he leaves behind "visible" goods, such as vehicles, real estate, books, artwork, etc., but he also leaves behind "invisible" (digital) goods, such as cryptocurrencies. All visible or invisible assets can be shared among heirs.

What are the responsibilities and rights of the family in this case? How can the values be accessed if the deceased did not leave any statement? Is it possible, for example, to ask the brokerage firm to extract data to verify the existence of these coins?

Estevan: If a person dies without a will, his or her assets will be distributed among the heirs in accordance with the provisions of the Brazilian Civil Code. The same thing happens with digital inheritance. Let me give you an example: if a person dies and has only one child as heir, that child is entitled to inherit the entire estate of his deceased father ("traditional" and digital inheritance).

Now imagine that this son knows that his late father invested in cryptocurrencies with Foxbit Inc. and Cryptocurrency, but he doesn't know the amount or the coins his father invested. What can this child do?

This son can go to court and ask the judge in the case to preside (issue a letter with a court order) over the two companies and notify them so that they can inform the deceased of the investments in the account.

The company will then inform the deceased during this process of the currencies invested, the amount of each currency and whether a balance exists in Brazilian currency (real). Now, with this information, the child can request that these values be included in the parent's list.

Therefore, an excerpt can be requested from the company. It is also important to note that if a deceased person leaves money in a cold wallet and no one knows about the cryptocurrency or if the cold wallet is lost, the money cannot be recovered. Therefore, this form of cryptocurrency storage carries a huge risk.

In this case, are tokens, cryptocurrencies, NFTs, all legally the same?

Esteban: Yes Everything is included in the concept of digital inheritance and it can all be shared between successors.

4- Is the value of a commodity determined by the market?

Estevan: The answer is yes, but that's the big question that will face the digital legacy process: the pricing of these digital items.

It is easier to address the need if the estate consists only of digital currencies, since each currency has its daily price. In this way, for the purpose of dividing the inheritance, the currency is valued at the time of dividing the inheritance.

However, in the case of NTF, for example, values vary widely and disputes may arise between heirs as to the value of the assets. In such cases, the judge may seek help from a judicial appraiser who is an expert in the digital field to price the item.

Let me give you an example to make it easier to understand: suppose that the deceased person buys a digital garment in an online game for R$10,000. Years later, the person dies. Would someone pay the same 10,000 or more for the same item? It depends on many factors: Is the game still popular? Has the number of players increased or decreased? Is anyone still interested in buying this NTF? Therefore, it could be that the NTF appreciates or depreciates significantly. The market will tell the price.

The issue of digital inheritance was recently argued in the Minas Gerais State Court in Case No. 1.0000.21.190675-5/001. Can you explain to us what happened in that trial?

Estevan: In this case, the heiress could not open the deceased's devices (cell phone and Apple-branded laptop) because she did not have the cryptocurrency for those devices.

The heiress even gave the devices to Apple's licensee, but was told that the company would only unlock them by court order. As a result, the heiress asked the judiciary to have Apple unlock the devices (and therefore inform the deceased of the cryptocurrency).

However, the privacy of people, both living and dead. Therefore, unlocking the deceased's device may jeopardize their privacy (even in case of death), as well as the privacy of third parties (e.g. private information such as exchange emails).

Our important precedent in the above case is as follows: the judge understood that this invasion of privacy was possible where the request in the digital inheritance was justified.

Thus, if the heiress mentions that she needs to unlock the devices in order to access the deceased's accounts to withdraw the cryptocurrency value, for example, the judge will authorize access to those devices.

However, it was necessary to prove to the judge the necessity of unlocking the device and the possibility of not being able to access this digital legacy by other means. In this case, the judge-rapporteur understood that the heiress had not demonstrated "the reason for her interest in accessing the personal data of the deceased" and denied her request for unlocking.

What advice would you give to our readers?

Estevan: If you as a reader invest in cryptocurrencies or own any type of digital asset, it is best to inform your family of your account and cryptocurrency so that they can release these values in a simple way after your death.

For added security, you can have a will drawn up by public deed at a notary public, appointing an executor to administer the amounts and distribute them to your heirs according to your wishes.

Attorney Estevan Facure Giaretta, Expert in Digital Inheritance and Cryptocurrency Cases / Disclosure