Drafting the Digital Asset Codicil: A Practitioner's Primer

The drafting principle is simple: the instrument grants the executor legal authority to deal with digital assets, and points to an external, non-public document for the operational detail. No key material, no wallet addresses, no device locations, and no balances appear in the will or codicil.

A probated will can be inspected. Treat every word in it as public.

Definitions drawn too narrowly age badly. A clause naming 'Bitcoin held on exchanges' will not cover a multisig cold wallet, an NFT, a staked position, or whatever exists in fifteen years. Define digital assets to include cryptocurrency and other digital tokens however held, private keys and seed phrases, accounts with digital asset service providers, and associated access credentials.

Add an express power for the executor to take possession of, hold, transfer, sell, or distribute those assets in specie, and to engage technical specialists at the estate's expense.

The codicil should reference an executor briefing or memorandum of digital assets by description - not by contents. Something like: 'My executor should refer to my Memorandum of Digital Assets, which is held by my solicitor and updated from time to time.' The memorandum itself is not part of the will and is not published.

Because the memorandum sits outside the will, it can be updated when custody changes without re-executing the testamentary instrument. That is the whole point.

Australian succession law does not have a bespoke digital assets regime like the US RUFADAA. Executors rely on general estate powers plus whatever the will grants. That makes express drafting more important here, not less, because there is no statutory default filling the gap.

Also consider Commonwealth computer-access offences: an executor accessing an account without clear authority may be exposed. Express written authority in the will materially reduces that risk.

The executor does not need technical skill, but they need to know that Bitcoin exists and that specialist help is available and pre-authorised. Consider appointing a technically literate co-executor or, more practically, naming the custody adviser in the memorandum as the first call.

Finally, advise the client that the plan must be rehearsed. A codicil that has never been tested against the actual wallet is legal comfort, not a recovery plan.