Your clients likely are aware of the importance of having comprehensive, up-to-date estate planning documents. What you may not realize, however, is that where the original documents are stored can be equally as important – and can either help your clients out immensely, or can cause them and their families to incur significant legal fees.
A complete estate plan includes documents which are to be used in the event of your clients’ incapacity as well as at their death. In both of these situations, it’s important that the individuals named to serve in those documents are aware that the documents exist, where they are located and how they may be accessed. After all, if the original documents can’t be found, they will be of little use. A beneficiary of a will whose original that can’t be located, for example, may be out of luck, if the beneficiary wouldn’t have otherwise inherited under the applicable state laws relating to intestate succession. For example, Virginia law presumes that if an original will can’t be located, its creator destroyed it with the intent that it be revoked. As a result, attempting to admit a photocopy of a will to probate can be a costly, time-consuming endeavor, and there are no guarantees as to whether the copy will ultimately be accepted.
Proper Storage of Documents
To avoid the problems that arise when original estate planning documents are lost, we recommend clients do the following:
(1) Store original estate planning documents, and any other important legal documents (deeds, life insurance policies, etc.), in a safe, secure and logical location.
Many clients choose to store their documents in a waterproof and fire-resistant safe or file cabinet at home; others prefer to keep theirs in a safe deposit box at the bank. These are all good options. It’s not recommended to store original documents in a car, the freezer, a basement that floods or in one of the many banker’s boxes a client may have sitting in their garage. Clients should help their loved ones out by choosing a logical location.
(2) Ensure that others will be able to access the documents in the event of a client’s death or incapacity.
If your client is keeping your documents in a safe at home, make sure they make extra copies of any safe keys and combinations. If they are keeping the documents in a safe deposit box, make sure they work with the bank to ensure that a trusted family member or friend can access them in the event of their death or incapacity.
For example, under Virginia law, an agent under a power of attorney (POA) doesn’t have the automatic right to enter into and remove all contents of a safe deposit box, although the agent may be permitted to enter into the box for the limited purpose of searching for the original POA. For this reason, safeguarding the documents having a trusted family member safeguard them may cause fewer headaches for fiduciaries. If a client chooses to use a safe deposit box, it’s generally recommend that it be in the name of joint owners, so that the joint owner may be able to access the contents of the box in the event of your client’s incapacity or death. Always have clients check with the bank, however, to ensure this will be the case. Each bank’s policies and procedures may vary.
(3) Tell the individuals named in their estate planning documents where they’re keeping the originals and how they may access them.
It’s a good idea to do this in writing, so the information isn’t forgotten. If your client stores their documents in a safe, be sure their named agents and executor have the combination or a copy of the key. If the documents are in a safe deposit box, make sure their named agents and executor know the box number and the address of the bank branch where the box is located. If they change the location of the documents, make sure they update their loved ones immediately to make them aware of the new location.
(4) To avoid confusion, shred any old, revoked estate planning documents.
You don’t want your client’s loved ones to run across, and attempt to use, an outdated will or POA that no longer reflects their wishes. Prevent misunderstandings and family conflicts by having your clients keep only current estate planning documents.
Jessica A. Hayes is a trusts & estates attorney at Wolcott Rivers Gates in Virginia Beach, Virginia.