¶ C01
Introduction and Use
Purpose. This appendix sets out a complete set of provisions for a trust instrument that will hold digital assets. The provisions are written as seventeen articles that can be inserted, together or in part, into the administrative portion of a trust agreement or declaration of trust. They gather in one place the model provisions that appear in the chapters, conform their defined terms, remove overlaps and fill the gaps between them. Each article is preceded by drafting notes and followed by a Comment that identifies the chapter where the point is developed and the statutory basis on which the article relies. The provisions are original to the treatise and are written to illustrate the drafting points in the text. Each must be adapted to the facts, the parties and the governing law before use.
Sources in the chapters. The articles draw on the model provisions in ch. 12 (staking and lending, ¶ 1290.05), ch. 13 (consent to disclosure, ¶ 1390.02 to ¶ 1390.05), ch. 14 (the general digital-assets article, ¶ 1490.02), ch. 15 (retention, powers, key material, successor key-holders, valuation, the custody director and exculpation, ¶ 1550.02 to ¶ 1590.04), ch. 16 (custody standard, liability, valuation, insurance and indemnity, ¶ 1690.02 to ¶ 1690.05), ch. 22 (key-holder succession and recovery guardians, ¶ 2290.03 to ¶ 2290.05) and ch. 30 (tax records, ¶ 3080.07). Where those provisions differ, this appendix adopts one version and the Comment states which and why. The substance of each chapter provision is preserved. Points where the wording here departs from a chapter provision are listed in ¶ C90.08.
Two configurations. The articles serve two kinds of trust. In the first, a single trustee or co-trustees hold all powers over digital assets, and Articles 7 and 8 are omitted. In the second, the instrument appoints an Investment Director and a Custody Director under a directed-trust statute, and the trustee acts on their directions for the matters assigned to them. The second configuration is the one ch. 15 recommends for a trust whose principal asset is a concentrated token position, because it lets the settlor place investment judgment and key management with persons who have the relevant expertise and lets an institutional trustee accept the office on terms it can perform. See ¶ 1501.03 and ¶ 1530.01. Where an article differs between the configurations, the alternative is bracketed and the drafting notes explain the choice.
Governing law. The directed-trust configuration is written for a trust governed by Delaware law, because 12 Del. C. § 3313 gives effect to directions and limits the directed trustee's liability to wilful misconduct, and because § 3303 permits the instrument to vary most default duties. See ¶ 1520.05 and ¶ 1640.04. A drafter using the articles for a trust governed by the law of a state that has adopted the Uniform Directed Trust Act, or by the law of South Dakota, Nevada, Wyoming or New Hampshire, must conform Articles 7, 8 and 16 to that statute. See ¶ 1520.02 to ¶ 1520.10. In a state that retains the Uniform Trust Code rule on powers to direct, the trustee's duty to refuse a direction that is manifestly contrary to the terms of the trust or a serious breach of fiduciary duty cannot be removed by drafting. See ¶ 1520.11.
Conventions. Bracketed words are choices or blanks to be completed: "[name]", "[number]", "[amount]", "[state]". Alternatives appear as "[Alternative: ...]". Capitalized terms are defined in Article 1. "Trustee" includes every trustee then acting. References to Schedules are to the schedules described in ¶ C90.05, which are kept with the trust records and not attached to the instrument. Article and section numbers are internal to this set of provisions and must be renumbered to fit the instrument into which they are placed.
What the instrument should not contain. No article calls for a private key, seed phrase, key share, password or the location of any device or backup to appear in the instrument. Those matters belong in the Key Record kept under Article 6, which the trustee or Custody Director keeps as an administrative record. A trust instrument is shown to beneficiaries, custodians, banks and sometimes courts, and anything written in it must be assumed to be known to all of them. See ¶ 1390.05 and ¶ 1560.03.
Coordination with other instruments. A trust that holds digital assets is usually one of several instruments. The settlor's will and durable power of attorney should contain the consent and authority provisions in ch. 13 (¶ 1390.02 to ¶ 1390.05), and a will should contain the powers of the personal representative in ch. 21 (¶ 2190.03). Where the trust holds tokens through a limited liability company, the operating agreement should contain the provisions in Appendix D, and the trust's directors should be given the power to act as or direct the manager. See ¶ 1570.02. A key-holder agreement or recovery-guardian appointment under ch. 22 is a separate contract, and Article 10 authorizes the trustee to enter into one.
Order of the articles. Article 1 states definitions. Articles 2 and 3 grant powers. Article 4 relieves the duty to diversify. Articles 5 and 6 govern custody and key material. Articles 7 and 8 establish the trust directors and the directed trustee's position. Articles 9 and 10 govern succession to key-holding roles and recovery arrangements. Article 11 gives the consents the fiduciary-access statute requires. Articles 12 to 15 govern valuation, the allocation of receipts, reports and tax records. Articles 16 and 17 allocate liability and provide for insurance and indemnity.