Congratulations! You’ve spent the time and effort to prepare and finalize your estate planning documents. You feel good because you’ve made some hard decisions and protected your loved ones in case of an emergency or your death. There’s still some work to be done, though.

What’s next?

There are two important steps after finalizing your estate planning documents. The first is to make sure that the ownership and the beneficiary designations on your assets don’t conflict with your estate plan and create a mess.

The second step (and the subject of this post) is to safeguard your original documents. Most likely, when your attorney sent you your original signed documents, you were urged to place them in “safekeeping.” Below, we’ll go over what that means.

Safekeeping

Although this is wise advice, many people are not sure what “safekeeping” really means. To me, it means putting your original documents in a secure place, where they can be found when they are needed.

Aren’t copies good enough?

Let’s say that you’ve made photocopies of all your estate planning documents and given them to your family and to the persons named as executor or as agents under your Powers of Attorney. Everyone knows what your wishes are. Isn’t that good enough? Probably not.

Although photocopies of Powers of Attorney are supposed to be valid, some medical facilities or financial institutions may demand to see the original signed version so they can verify the authenticity of the photocopy.

The real problem is with your Will. In Illinois, when you die your original Will is supposed to be filed within 30 days with the Clerk of the Circuit Court in the county where you resided. When your Will is probated so your executor can be appointed, the probate court will first determine if the Will presented is an original that has an ink signature. In most cases, a photocopy of your Will is not effective for opening probate and appointing your executor.

A missing original Will is problematic. In Illinois, when an original Will that was in the testator’s possession cannot be found after the testator’s death, there is a legal presumption that the Will was destroyed by the testator and revoked. If your original Will cannot be found after your death, the presumption will be the same as if it never existed (even if there’s a copy of it). Whatever your wishes for the distribution of your estate were, they will be ignored and your estate will be distributed based on the intestacy rules established by the legislature.

How does a lost Will happen?

A missing Will (or lost Will) occurs in several situations. First, the original Will may actually be lost. Perhaps it was finalized many years ago and everyone has lost track of it. Despite looking high and low, no one can find the signed Will. In this case, it is presumed that the testator destroyed the Will, and the estate will pass by intestacy.

There is another more common situation as well. It’s not unusual for family members to go through one’s home looking for a Will after death. Sometimes, a child or other heir will find the Will and will discover that the Will doesn’t leave them their “full share” of the estate. Perhaps the family member was “out of favor” with the testator, or perhaps the testator felt the family member had already received their fair share of the assets.

In any case, the heir who finds the original Will and feels cheated by the Will simply destroys the Will when no one is watching.

For example, assume a father with two sons, Art and Charlie. The mother has already passed away. Charlie has always come to his father for handouts when he wanted to buy a new vehicle, needed a down payment on a house, or had a great “investment” opportunity. The funds were never repaid. Taking this history into account, the father decided that it was fair that Art gets 90% of his assets and that Charlie gets 10%, and he puts that in his Will.

Let’s also assume that when the father passes away, Charlie goes through his father’s house first and finds the original Will that only leaves him 10% and gives his brother 90%. Well, Charlie knows that if there’s no Will (intestacy), then Charlie will get 50% of his father’s estate, not a mere 10%. After a short discussion with himself, Charlie decides that he’s entitled to more than 10%, and the Will disappears.

Even though the father told his friends (and attorney) that he was leaving 90% to Art, the fact that the original Will could not be found in the father’s effects leads to the presumption that he revoked it. If the presumption cannot be rebutted, then Art and Charlie will each get 50% of the estate and the father’s true wishes will be thwarted.

What are my safekeeping options?

There are four primary options for safeguarding your estate planning documents:

1. Safe Deposit Box. This is the traditional solution; however, there are several downsides, including an annual fee for the box, inconvenience, the fact that fewer banks maintain safe deposit boxes, and the fact that the location may be unknown to others.
2. Fireproof Safe. Many people think it’s too much trouble to maintain a safe deposit box, especially if it only holds some documents. An alternative is to purchase a fireproof cabinet or file box for your home. Although the convenience is hard to beat, a fireproof multi-drawer filing cabinet may be expensive. A small fireproof file box just for your estate planning documents is more reasonably priced. Make sure that someone else knows the combination or has a duplicate key.
3. Give to an executor to hold. Most people think they should keep their original documents in their possession. However, there’s really no downside to giving your original Will to the person you’ve chosen to be your executor. If you didn’t think they were trustworthy, you wouldn’t have picked them in the first place. After you pass away, the named executor is the obvious person to file your Will with the court, so it’s useful if it’s already in their possession.
4. Have multiple originals. There’s no rule that says that you can’t have duplicate (or triplicate) original signed copies of your Will. If you have multiple original Wills, then you can keep one and give one to a trusted friend or family member. Having multiple originals will limit the likelihood that all of them will be lost, or that they’ll all be destroyed by a disgruntled heir. As long as one original can be found after your death, it can be filed with the court and your wishes will be followed. The same is true of your Powers of Attorney. It’s always a good idea to have multiple originals and to make sure that your agents have one.

What about my attorney?

Can I have my estate planning attorney keep my original Will?

Decades ago, this was standard practice, but it is seldom done anymore. There are many problems with this approach. Unless you have an ongoing long-term relationship with your attorney, it’s quite possible that the attorney will lose track of you and will have no idea that you have passed away. If it’s been a while since the attorney has contacted you, your family and friends may have no idea who your estate planning attorney was. Even if they do find a copy of your Will that shows the name of your attorney, it’s possible that the attorney is no longer practicing or has also passed away. A much better option is to maintain control of your documents.

Pick an option and do it

You’ve gone through a complicated process to create your estate planning documents. It is critical then that you spend a little more time to come up with a way to safeguard your documents so that they will be available when they are needed.

It is not appropriate to just put them “in the blue file by my bed” as one of my clients did. After she passed away, the “blue file” couldn’t be located, and her estate did not go to the charities that she had chosen.

There are several good alternatives for safekeeping. Please pick one and make sure that your executor knows where to find your documents. It will help to ensure that your wishes will be honored.

Please contact me if you have any questions.

Contact John