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Note From the Editor: May 2021

Editor in Chief Susan R. Lipp discusses this month's issue.

The fiduciary’s role has never been easy, but in recent years, with the explosion of the use of digital assets and cryptocurrency, it’s become even more complicated. Fiduciary professionals increasing get questions from clients about planning for these assets, many of which concern the ability of their personal representatives and heirs to get access to these assets, says Gail Cohen, chair and general trust counsel at Fiduciary Trust Company International and chair of the Committee. And as noted in “Keep Up-to-Date With Digital Responsibilities,” p. 64, by Stacy E. Singer and Fredrick B. Weber, fiduciaries responsible for post-death administration must access critical information that’s stored digitally or risk exposure to personal liability for any losses that occur. 

That article proceeds to detail the laws helping fiduciaries get access to these assets and provides suggestions for fiduciaries and their clients to make it easier to get such access. Another article in this month’s issue focuses on access to cryptocurrency in a decedent’s estate. In “The Fiduciary’s Guide to Cryptocurrency: Part I,” p. 40, Ivan Taback and Stephen L. Ham IV explain the basic principles of cryptocurrency and address common issues relating to acceptance and management of cryptocurrency by executors and trustees.

Fiduciaries face liability for other matters, especially regarding discretionary decisions to manage investments and balance the needs of the various beneficiaries when making distributions. “Exercising Fiduciary Discretion in an Uncertain and Increasingly Litigious World,” p. 46, by Daniel M. FitzPatrick uses hypothetical fact patterns to illustrate some of the conundrums fiduciaries face and possible solutions to these scenarios. And “Fiduciary Law Trends,” p. 36, by Joshua S. Miller and Michael Sneeringer discuss recent court decisions in which fiduciaries were found liable (or not) for their actions. Finally, in “The Nuts and Bolts of a Fiduciary Accounting,” p. 60, Francine Lee discusses how having a fiduciary accounting is one of the best ways for a fiduciary to protect itself from liability.

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