Clients often ask estate planning attorneys where they should store original estate planning documents—wills, trusts, powers of attorney, and healthcare directives—for safekeeping. While there is no right or wrong answer to this question, consider the following:
Some people believe the best place to store their original estate planning documents is in their safe deposit box at a local bank. This may make sense if you have given your spouse, a trusted child, another family member, or a friend access to your box. However, allowing someone to access your safe deposit box does not give them the same legal rights you have. Because a safe deposit box is a rental arrangement (you are leasing the box from the bank), if you are the only one who signed the lease and you become incapacitated (unable to manage your affairs) or die, no one else will be able to open your box, not even the people to whom you have previously given access. Depending on your state law, the only way for someone else to gain access to your box if you become incapacitated or die may be to obtain a court order, which wastes time and money.
Suppose you are not comfortable giving someone else immediate access to your box. In that case, some banks may allow you to add your revocable living trust as an additional lessee, which will give your successor trustee access to your box if you can no longer serve as trustee of your trust for any reason. Also, if you use a safe deposit box to store essential items such as your estate planning documents, ensure that your trusted loved ones know which bank has the box—and the exact branch where it is located. They will also need to know where you keep the key.
One final caution about using a safe deposit box for your estate planning documents: Banks have limited hours. If your loved ones need to access your documents outside of banking hours, they cannot.
Home safes are popular these days, but for yours to be a good place to store your original estate planning documents, it should be challenging to move (bolted to the floor!), fireproof, and waterproof. In addition, ensure that someone you trust has the combination to your safe or can quickly gain access to the combination if you become incapacitated or die.
Traditionally, many estate planning attorneys offered to hold their clients' original estate planning documents for safekeeping (usually without charging a fee). Today, most do not want to take on the liability. In addition, as the years go by, it may become difficult for your loved ones to track down your attorney, who could have changed firms, become incapacitated, or died.
Suppose you have named a bank or trust company as your executor/personal representative or successor trustee. In that case, this may be the best place to store your original estate planning documents if they are willing. Banks and trust companies often have specific procedures to ensure that your original estate planning documents are stored in a safe and secure area. If you choose this option, ensure that one or more of your loved ones know where your original documents are located.
Regardless of where you decide to store your original estate planning documents, ensure that your family members, a trusted friend or advisor, or your estate planning attorney knows where to find them. Depending on state law, if your original documents cannot be easily located, it may be legally presumed that you purposefully destroyed them. Under Texas Estates Code § 256.156, if the original Will cannot be found at the time of probate, and it was last known to be in the testator's possession, there is a rebuttable presumption that the testator destroyed the Will with the intent to revoke it. Without your estate planning documents, your money and property will be divided among your family according to state law and distributed outright. It will not matter if you want something different if no one can find your documents. If you have questions about the best place to store your documents or want to discuss creating or updating your documents, Book a FREE Discovery Call.
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