Clients often ask where they should keep their Will and Trust. Although some people ask their attorney to hold the original documents of their estate plan, Forbes’ recent article, “Keeping Your Estate Planning Documents Safe,” explains that, because of the expense of storage and the move to paperless offices, many estate planning attorneys are now having their clients hold the original documents. I believe that is the right answer. I’ve seen well established law firms with secure vaults bumble with the retrieval of original documents. Even recently, I had to push a firm who insisted they no longer had an original Will. They did in fact have it (and ultimately found it), but it wasn’t filed where they thought it was.
If you are wondering where to keep your Will and Trust, here are some options to consider (and some to avoid):
Caution with safe deposit boxes. I would generally avoid placing the original documents in a safe deposit box, because the authority to get into the box is inside the box! If you pass away or are incapacitated it will require a court order or at least a key and an on point reference to the probate code to obtain access to the box (in California for instance, Probate Code Section 331 allows a person with a key to gain access to the box for the purposes of retrieving original Will and Trust documents). Point being, expect your Executor or Trustee to encounter resistance, and be prepared for that if a safe deposit box is where you feel you should keep your Will and Trust.
You don’t need to get too creative.
These are your documents, and you should have them where YOU feel comfortable and where you feel your Executor and/or successor Trustee will be able to find them when needed. If your originals get lost or destroyed, get with your estate planning attorney to sign new original documents ASAP. And follow the next pieces of advice..
Have copies.
Get a set of hard copies in another location that is easily accessible. You can now use the safe deposit box to hold a set of copies of your documents, if you’d like. Your attorney should also have a set of copies.
E-records.
Your estate planning attorney should have an electronic copy of your estate plan and should be willing to send you an electronic version of the documents to keep with your e-records, if you ask for it.
Fireproof safe.
A fireproof safe is a great place to keep these important documents. Give a key or combination to your Executor or be sure they know where to find it.
If the original documents somehow vanish after a death, your family may still be able to use a set of copies, particularly for Trust documents. For Wills, California law presumes that a Will was destroyed with the intent to revoke it if the original cannot be located, although you may petition the probate court to prove the terms of the lost or destroyed will. If that fails, the laws of intestate succession will apply.
Remember that creating your Will and Trust isn’t a “one and done” task. You should review your estate planning documents every few years to make certain the people you’ve named in them are still alive and your intentions haven’t changed. In addition, review where you should keep your Will and Trust based on the conditions in existence at the time, and ensure that those who will ultimately need those documents will know where to look.
Reference: Forbes (August 16, 2019) “Keeping Your Estate Planning Documents Safe”