NFT Legacy.
Starting point, you are not the “owner” of the NFT
The phenomenon known as crypto art It is becoming increasingly common, reaching more and more interested parties and potential collectors of this new digital art phenomenon;
Proof of this is that in In the first half of 2025, NFT sales grew by up to 78% compared to the second half of 2024, demonstrating the strength and progressive implementation of this new art market globally.which is increasingly attracting more artists and collectors of all economic levels and purchasing power.
Given this exponential growth, there are collectors who still consider buying an NFT (acronym for English) non-fungible token, that is, a non-fungible token) It is equivalent to “owning” the drawing, the video, or the digital work.
In reality, the NFT does not grant ownership of the work, but simply ownership of the token in a blockchain address, usually enabling the holder to own or transfer it. NTFS does not automatically make you the owner of the content.since intellectual property normally remains with the author or entity that, as the case may be, holds it.
The capabilities of the Token will depend, to a large extent, on the content of its license.
All these issues become especially relevant upon the death of the token holder, as the following questions arise: Should the NTF be included in the deceased's estate? How do I access it? What can and can't I do with it?
“The rise of NFTs in Spain: token that is transmitted vs. access to data”
From the perspective of Spanish inheritance law, the digital token (NFT) is a good with heritage content that is transmitted to the heirs in accordance with Article 657 and 659 CC.
The real problem is usually how to access at the same time after the moment of death and What features come with the token.
Post-mortem access key
El art. 96 LOPDGDD allows heirs or designated persons access data and accounts digital, addressing the service providers and platforms where they are hosted, respecting in all cases the instructions of the deceased, who may expressly designate a person to access said servers in accordance with his instructions to fulfill them (the one called in practice the digital executor).
In this regard, it can be very useful to include in the will a express mandate so that the executor can request the platforms for the purpose of managing everything related to these digital assets: NFT identification, ownership traceability, and NFT reassignment to the inheritance wallet, etc..
Licensing: the “blind spot” of many “NFT legacies”
In most collections, the NFT is supported by a series of Terms of use that grant the buyer a license limited to certain acts such as visualize, resell the token, and even have limited commercial uses, but without cede copyright.
If the license is non-transferable, upon the death of the collector digital token It will pass to the heirs, but the license can become extinct or require consent from the IP owner to continue using the content.
That's why it's essential:
- Read and file (dated) the Terms of the marketplace/collection in effect at the time of purchase.
- Negotiate licenses where possible transmissible due to death or with right of substitution in favor of the executor.
- At the time of succession, the digital executor or the heirs should analyze the terms of the license, as well as its consequences in the different aspects of the succession.
Thus, in inheritances with NFTs that form part of the estate It is essential to coordinate 3 aspects to avoid surprises and unforeseen consequences in its processing:
- The technical plan: Access to and custody of the NFT.
- Contractual: The transferability or non-transferability of the license, the terms of the Marketplace, etc.
- Regulatory scope: In this regard, the Regulation (EU) 2023/1114 (MiCA Regulation) It excludes from its scope unique and non-fungible crypto assets, therefore, beforehandThe regulatory scope of the aforementioned Regulation will not apply to NFTs.
The role of the digital executor
Finally, considering all these aspects, the figure of the digital executor as that person designated by the testator to fulfill the will expressed by the testator in the will in the specific area of digital assets and accounts, corresponding, among other powers, to access the data and digital accounts of the deceased, as well as to inventory and prove the ownership thereof, as well as to administer and preserve them.
RRYP Global, international inheritance lawyers.
