What a South African Trust Deed Needs to Say About Bitcoin

A trust deed is the trustee's job description. When it says nothing about digital assets, a trustee who buys Bitcoin for the trust is acting outside the mandate and can carry any loss personally. Most South African deeds were drafted long before 2009. What follows is the language the document needs before the trust touches its first satoshi.

The deed is the trustee's job description

A South African trust is a strange legal animal. It is not a company and it has no legal personality of its own. The trustees hold the property in a fiduciary capacity and they answer to two documents at once. The first is the Trust Property Control Act 57 of 1988, which sets the statutory floor: no trustee may act until the Master of the High Court has issued letters of authority and section 9 holds every trustee to the care, diligence and skill that can reasonably be expected of a person who manages the affairs of another. The second document is the deed itself. Whatever powers the deed does not grant, the trustee does not have.

That second point is where Bitcoin gets trustees into trouble.

A trustee who invests outside the powers in the deed is not making a bold call. He is acting without authority. If the trust suffers a loss on an unauthorised investment, the trustee can be held personally liable to make it good, whatever his intentions were and however well the asset performed before it fell. The Act keeps trust property out of the trustee's personal estate. It offers no protection running the other way.

Most deeds in circulation were drafted by attorneys who had never heard the word satoshi. That is no criticism of the attorneys. It is a reason to read your deed before you read another word about price.

Can the deed you already have hold Bitcoin?

It depends on the investment powers clause. Deeds fall into three families. The oldest authorise a closed list: government stock, mortgage bonds, bank deposits. Bitcoin sits outside it. A second family permits shares and securities, often limited to instruments listed on a recognised exchange, wording that also excludes Bitcoin because Bitcoin is not a security under the Financial Markets Act and is not listed anywhere. The third family grants power to invest in any assets of whatsoever nature, the modern formulation, which arguably covers Bitcoin already.

The word arguably has to do a lot of work in that sentence.

Even under the widest wording, silence creates a practical problem. A trustee measured against the section 9 standard must be able to show that holding a volatile bearer asset was a considered decision inside the mandate. An independent trustee asked to co-sign a Bitcoin purchase under a deed that never mentions digital assets will often simply refuse, on the sensible ground that a court reading the powers narrowly puts his personal estate on the line. Express wording ends that argument before it starts and it costs a fraction of what the argument would.

There is also a prior question, namely whether a trust should hold the coins at all. I weigh the trust against a company and your personal name in where your Bitcoin should sit.

The clauses a deed needs before the trust buys

When a deed is amended or drafted fresh for a Bitcoin holding, five pieces of language earn their place. The drafting belongs to the attorney. The checklist below is the one I work from when a family asks what their deed is missing.

• Express power to acquire and hold digital assets including Bitcoin and to dispose of them, with the asset described as what it is: a bearer instrument controlled by whoever holds the keys.
• Power to appoint licensed crypto asset service providers for custody and execution and to sign their mandates on the trust's behalf.
• A governance framework for the keys: how they are distributed among trustees and third parties, what quorum authorises a transaction and how control transitions when a keyholder dies or becomes unable to act.
• A duty to record every acquisition and disposal with dates and rand values, at the level SARS expects of any other asset class.
• Power to engage specialist advisers, from fiduciary attorneys to tax practitioners, at the trust's expense.

One thing must never appear in the deed: the keys themselves.

A deed is lodged with the Master, copied for bankers, attached to FICA packs and read by auditors for the rest of its life. A seed phrase written into it is a seed phrase published. The same logic applies to wills. The deed grants powers and describes governance; the operational detail, where the keys live and how a successor reaches them, belongs in separate letters of instruction that can be updated without amending anything.

Who actually holds the trust's keys

Bitcoin does not know what a trustee is. Control follows the private keys rather than the letters of authority, which is why key governance deserves more attention than any other clause in the deed. A single trustee holding a single hardware wallet is a single point of failure wearing a fiduciary title.

The structure that fixes this is collaborative multisig.

In a 2-of-3 arrangement the trust's Bitcoin sits behind three keys and any two must sign before a coin moves. The distribution is deliberate: keys with the trustees, a recovery key with a regulated provider and nothing anywhere that lets one individual act alone. South African trust practice already thinks in these terms. Since the Land Bank v Parker judgment in 2005 the Master routinely requires an independent trustee on family business trusts, precisely to stop a family treating trust property as household money. Multisig takes that principle off the letterhead and enforces it in the protocol. The quorum is not a policy anyone can quietly ignore. It is how the wallet works.

This is how I build the SimplB Vault for trust clients. The trustees hold two hardware keys, a Trezor and a Ledger, stored apart. I hold the third, a Coldcard recovery key, as a Juristic Representative of CAEP Asset Managers (FSP 33933). The trust transacts with its own two keys and my key comes into play only in recovery, when a device fails or a keyholder is gone. I take on five Vault setups a month, which is as many as I can do properly.

There is a statutory backstop worth knowing about. The FSCA regards crypto assets held in safe custody for a client as trust property under the Financial Institutions (Protection of Funds) Act. They must be kept separate from the provider's own assets and they can never form part of the provider's estate, even in insolvency. Coins sitting on an offshore exchange under a nominee arrangement enjoy no such protection.

When a keyholder dies or resigns

Trust law assumes people are replaceable. Trustees resign or die, the Master amends the letters of authority and the trust carries on. Keys break that assumption. If the only person who knew where the seed phrases lived is gone, the trust still owns its Bitcoin on paper and will never move it again. The balance is visible to anyone who looks and reachable by nobody. No court order compels a blockchain and no executor can subpoena a hardware wallet.

I wrote about the personal version of this failure in what happens to your Bitcoin when you die. The trust version is more forgiving, provided the deed forces the discipline.

The deed should require a documented transition protocol as a standing duty rather than a good intention. In practice that means pre-assigned backup signers, written onboarding steps for a new keyholder and key rotations done on a schedule with more than one person watching. The letters of instruction get updated the same week a trustee changes, the way a company updates its bank signatories. A multisig vault run this way survives any single death without drama, because the remaining keys still meet quorum while a replacement is created.

A trust that gets this right can hold Bitcoin across generations, which is the entire point of the structure. Nobody goes to the trouble of setting one up for a single decade. I map that longer arc in multigenerational Bitcoin.

Amending a deed that says no

Where the existing powers exclude Bitcoin, the fix depends on the deed. Most modern deeds carry their own amendment clause, usually requiring the founder and trustees to agree in writing, sometimes joined by beneficiaries who have accepted benefits. The signed amendment is lodged with the Master and the trust moves on. Where no workable amendment clause exists or the founder has died, section 13 of the Trust Property Control Act allows a court to vary provisions that bring about consequences the founder never foresaw. A deed locked into a 1980s investment menu is a fair candidate for exactly that argument, though a court application costs more patience than a signature does.

The order of operations is the whole game. Amend first. Buy second.

A trustee who buys first and regularises later has already committed the breach and is hoping nobody with standing ever minds. Beneficiaries have long memories and better lawyers. The amendment can usually be drafted long before the FICA pack is complete, so doing things in the right order costs no time at all.

FICA, the FSCA and SARS all get a say

The regulatory plumbing around the purchase is more built-out than most trustees expect. On 19 October 2022 the FSCA declared crypto assets a financial product under the FAIS Act, so anyone advising on Bitcoin or intermediating it for clients must be licensed as a financial services provider or act as a representative of one. Crypto asset service providers were also added to the FIC Act's list of accountable institutions, which places every trust onboarding squarely inside FICA.

For a trust the verification runs in layers. Expect to produce the deed and the letters of authority, plus identity documents for every trustee and every beneficiary named in the deed, before an account opens or a vault is established. The pack feels heavy the first time a family assembles it. It is also the reason a properly onboarded trust holding is defensible in a way no informal arrangement ever is. I set out the full document list in Bitcoin and FICA compliance.

Two more dates belong in the trustees' diary. Since 30 April 2025 the travel rule under the FIC's Directive 9 has required originator and beneficiary information to accompany crypto asset transfers between providers, so anonymous hops between exchanges are finished for any regulated flow. And SARS has committed to the OECD's Crypto-Asset Reporting Framework, with automatic exchange of crypto tax information between tax authorities intended to begin by 2027. An offshore account will not stay invisible. The deed's record-keeping clause is not bureaucratic decoration. Disposals trigger tax events, the trust's returns will be tested against third-party data and the trustee signing those returns carries the section 9 standard into every line.

Where I would start

My honest sequence for a family sitting on a deed of unknown vintage runs like this. Send the deed to a fiduciary attorney with a one-line brief: confirm whether this trust can lawfully hold a digital bearer asset and if it cannot, the shortest compliant route to yes. Amend if needed and lodge the amendment. Assemble the FICA pack while that circulates. Only then open the account and buy, letting the coins settle into a multisig vault with the governance the deed now describes and letters of instruction signed the same week.

I should say plainly what I am not. I advise on Bitcoin under CAEP Asset Managers (FSP 33933); I am not a trust attorney. Nothing here is legal advice and none of it replaces a fiduciary specialist reading your actual deed. My side of the table is the custody design and the licensed rails that make the attorney's clauses work in practice.

A trust deed outlives everyone who signs it. The version you lodge this year will one day be read by a trustee you have never met, moving value you never imagined under rules nobody has written yet. Write the Bitcoin clauses for that person. They are the real client.