Creating an estate plan is important. Making sure the documents can be found is just as important. You may have spent considerable time working with your attorney to create a Will, Trust, Power of Attorney, Health Care Proxy, and other important estate planning documents. But what happens if, when the documents are needed, no one can find them?
Proper storage and clear communication about the location of your documents are often overlooked parts of estate planning. A carefully prepared estate plan can become difficult, or even impossible, to implement if the original documents are lost, misplaced, damaged, or inaccessible.
For New York residents, the location of the original Will is particularly important. If an original Will cannot be located after death, questions may arise about whether it was intentionally revoked, simply lost or accidentally destroyed. Depending on the circumstances, proving the contents and validity of a missing Will can require additional legal proceedings and evidence.
For this reason, original Wills should not be kept in a safe deposit box. After death, access to a safe deposit box may be restricted or frozen, potentially requiring an additional court proceeding so that the Will can be retrieved. Even when a safe deposit box is jointly owned, the box may still be subject to restrictions or require court involvement before its contents can be accessed for estate purposes. This can create unnecessary delays, expenses, and complications at a time when your family is already dealing with the loss of a loved one.
If the attorney who drafted your Will offers to retain the original Will for safekeeping, this is often the safest and most convenient option. The attorney can securely maintain the original document and ensure that it can be readily located when it is needed. If attorney storage is not available, the original should be kept in another secure location that your executor or other trusted individual will be able to access after your death.
Trust documents also deserve the same attention as a Will. If a Trust agreement cannot be located, the situation can become complicated. A trustee may need to determine whether the Trust exists, what its terms are, who the beneficiaries are, and what authority the trustee has to manage or distribute Trust property.
A missing Trust can also create questions about whether assets were actually transferred to the Trust and whether later amendments changed the terms of the original agreement. A copy of the Trust may be helpful, but it does not necessarily eliminate the problems created by a missing original. Additional investigation may be necessary to determine the Trust’s terms and establish what documents were properly executed.
The problem can become even more complicated when there are multiple versions of a Trust or amendments and it is unclear which document represents the most recent valid version. For a successor trustee or family member, this can mean delays, additional legal work, and potentially court involvement before the estate or Trust can be properly administered. The best way to avoid these problems is to make sure the current Trust agreement, all amendments, and related documents are safely preserved and their location is known.
Your estate planning file may include:
- Original Will and any codicils
- Trust agreements and amendments
- Powers of Attorney
- Health Care Proxies
- Living Wills
- Deeds and documents relating to Trust-owned property
- Beneficiary designation information
- Business succession documents
- Information concerning insurance policies and financial accounts
There is no single storage solution that works for everyone. The important thing is that the documents are protected and accessible when they are needed.
Depending on your circumstances, you may keep your documents:
- With your estate planning attorney, if the attorney offers document safekeeping;
- In a secure, fire-resistant location at home;
- In another secure location specifically designated for important legal documents.
You don’t need to give a copy of your estate plan to any individual. However, your executor, trustee, agent, or another trusted person should know where the originals are located and whom to contact. You should prepare a simple document that identifies where the documents are stored. You should also review the information periodically and update it whenever you move, change attorneys, amend your estate plan, or otherwise make significant changes.
Estate planning is about making your wishes clear and making things easier for the people you leave behind. A missing or inaccessible document can create uncertainty, delay, expense, and unnecessary stress for your family. It is also wise to keep electronic copies of your important estate planning documents in a secure location, in addition to safely storing the original documents. A well-prepared estate plan deserves a well-organized home.
