So, you’ve followed all the advice out there about getting your estate plan completed. You have drafted a Will (or trust) and the relevant Powers of Attorney; now what?
Well, if you have a Will, but no one knows where it is, you really don’t have a Will. Proper storage of your estate plan documents requires three things. You have informed the appropriate individuals of where the documents are located. You have chosen a storage location that is relatively accessible for those individuals. And that despite being accessible, the chosen location is safe. Let’s take a moment to review the generally available options.
You hold on to your documents and store them yourself
The simplest and most prevalent solution is to store the documents yourself. This means storing the documents in your home or some other safe location you control.
The key advantage of this method is that you always know where it is. If you keep it among your important papers, when you die, your Executor and other family members will know where to find your original Will if you’ve told them.
There is a significant downside risk. In many states, including Kentucky, the failure to find the original Will leads to a presumption that the decedent revoked it by intentionally destroying it. Your heirs may attempt to rebut this presumption by submitting affirmative evidence to the court that you did not destroy the Will. Essentially, your Executor must prove a negative to the court. It can be very difficult to prove that you did not take a specific action.
For example, perhaps the Will was located in a place destroyed by fire or flood. A court may be satisfied that the Will was not intentionally destroyed in such circumstances. But, if there was a significant time between that event and your death, your failure to correct the issue may convince the court despite the accidental nature of the destruction, you were satisfied with the result. It is often difficult to satisfy the Court that something did not happen, and in those cases, a Court will refuse to admit a Will to probate if the original is unlocated.
Alternatively, you may keep the Will in a safe deposit box. Safe deposit boxes are extremely secure but also very inaccessible by their very nature. Bank rules generally prevent your heirs or Executor from accessing the box to retrieve your Will. The result is someone (likely your closest family member) has to go to court and request an order to the bank permitting inspection of the safe deposit box to see if it contains your Will. So, if you are going to use a safe deposit box, you should ask the bank upfront, “what happens to the box when I die? Specifically, will my spouse or children be able to access the box to retrieve a Will?”
As you can see, maintaining the Will yourself is more than just taking it home and putting it in a drawer. Key individuals such as your spouse, adult children, and Executor must know where the original Will is. They will need to lay their hand upon it to offer it for probate. It is equally important that the Will’s location be secure for those individuals who may benefit from the Will not being entered into probate.
You let someone else hold and store your documents
Another option is having the Will secured by another trusted individual. This is a great option for a couple of reasons. First, because the Will is not in possession of the decedent, there is no presumption that a lost Will has been revoked. It is significantly easier to convince a court to permit probate of a Will copy. Second, because a third party holds the Will, there are fewer access issues upon the decedent’s death to things like a safe or bank safety deposit box.
The Executor named in the Will is the most likely person to hold the document. In this case, you provide the Executor the original Will and keep a copy for yourself. Upon your death, the Executor has the original Will required to initiate a probate proceeding in their possession. If the Executor somehow loses the Will, either just by misplacing it, or even if there’s some flood or fire as mentioned earlier, there is no presumption that it has been revoked. In this situation, courts are generally receptive to the need to probate a copy, provided the request is accompanied by appropriate affidavits of its loss or destruction by the third party.
Situations arguing against permitting a third party to hold your Will arise if you desire to prevent that third party from knowing the contents of the Will. When you do not want anyone to know about your estate plan before your death, having your Will in the hands of a third party is not a viable solution. Also, in the case where the chosen individual lives with you (so your spouse or adult child living in the house), if the Will is lost, a court may still presume you have revoked it because you had ready access to the Will.
You may have the attorney the drafted the will store the documents for you
Most estate attorneys are willing to store your Will. Having your Attorney store your documents lets you know who has them, and you can supply that information to your heirs and Executor. Most attorneys will store your Will using a safe deposit box or other means of fire-resistant storage. Your attorney will provide you physical or digital copies of the documents, and those on those copies should note the physical location of the originals.
What are the negatives of your attorney holding your Will? First, it locks you into a relationship with that attorney. Hopefully, you have had a good experience with the attorney, so this may not be a negative factor. Second, by holding the Will, the attorney gets the first shot at establishing a relationship with your Executor. That makes it significantly more likely that the Executor will retain the lawyer who wrote the Will, generating business for that attorney. Again, if the experience with the lawyer was a positive one, this may not be a serious concern. Third, an attorney may charge at least a nominal fee for the service. Last, if the attorney is a solo practitioner or part of a small firm, you should ask what processes they have to ensure access if they are unavailable or the firm ceases operations.
All in all, if you have a good relationship with your estate attorney, having them hold the will is a very viable option.
File your will with the county during your lifetime
Most states allow you to file your Will with the probate court before you die. This avoids the question of where the Will is stored and concerns over issues with third parties holding your documents. To do so, you complete your Will, take it to the clerk of the court’s office, and pay the associated filing fee to file it. The clerk will have you fill out a form with your name and the Executor’s contact information. The court keeps the original forever. It is not kept as a public document until filed in probate, and no one is allowed to review it until someone shows up at the Courthouse with a death certificate.
Since the court already has the original document, the Executor never has to worry about producing the original. The negative aspect is that the Court keeps the Will on file forever. Should you alter your Will later, those beneficiaries receiving less, or even no, benefit under the second will have the standing to challenge the change. Barring facts showing undue influence or incompetence at the time of the second Will’s formation, the challenge is unlikely to win, but just the litigation efforts can be costly.
In conclusion, you must keep track of the custody of your original Will and other documents. It is equally as essential that someone else knows where they are located. Each general method of storing your Will has advantages and disadvantages, and you should consider your situation considering your unique requirements. If you have not made an appropriate estate plan, I recommend you contact another attorney of your choice or me to begin the process.