Storage of Original Estate Planning Documents
The world is becoming more digital and paperless. Not paper-free, but paper-less. I don’t know about you, but I much prefer digital access to my credit card statements, bank statements and the like, rather than file drawers full of documents. Our office maintains and digitally backs up copies of past client files on our server for easy access and review. But when it comes to your own estate planning documents, access to the original signed Will, Trust and Powers of Attorney will remain necessary and critically important. Failing to properly store and safeguard original documents can derail an otherwise well-crafted estate plan.
- Wills — After a person’s death, Illinois law requires any person in possession of the decedent’s original Will(s) to file that original Will with the clerk of the court in the county where the decedent lived. If a probate estate is needed, the latest original Will is presented to the probate judge for admission to probate. But, what if the original has been lost and a decedent’s family can only locate a signed copy? If the original Will cannot be found, Illinois law presumes that the decedent intended to revoke the Will. A copy of the Will cannot be admitted to probate unless that presumption of revocation is overcome by clear and convincing evidence showing that the Will was not intended to be revoked. For example, if the decedent died in a house fire where the Will was stored, then that may provide a valid explanation for why the original Will is unavailable. For this reason, it is critically important for the original Will to be: (a) stored safely; and (b) accessible to your family and/or designated executors after your death. Ideally, we recommend that clients maintain their original Will (and Codicils, if any) in a safe deposit box, with instructions to their successors on how to access the box upon death. Alternatively, a fire-proof safe at home will work as well. If you move, be sure to identify where your Will is stored. If you lose or cannot find your own original Will, you should formally re-execute your Will or have a new Will prepared and properly executed.
- Trusts — We recommend that clients store their original trust documents along with their Will. Copies of trust documents should be maintained in paper files and/or digitally for access when needed. Generally, you should not need to access your original trust documents during your life. If you amend your trust, place those amendments with your prior original trust documents in your safe deposit box or home safe. If you need to provide trust documents to financial institutions or to a title company for a house closing, copies of the trust documents should normally suffice. If you provide your original trust documents to third parties, there is a risk that those original documents will be misplaced or compromised. If you lose or cannot locate your original trust documents, they should be formally re-executed.
- Powers of Attorney — Unlike Wills and Trusts, Powers of Attorney for Health Care and Property often must be accessed quickly during your life by your agents. We recommend that these original documents not be stored in a safe deposit box which may not be accessible over a weekend or holiday. Rather, a safe place at home, or with your agent, is more appropriate. When possible, copies should be provided rather than the original to insure that the original is not lost or misplaced. When a health care power is provided to a medical care provider, that provider should maintain your POA in your patient file for future reference.
Some attorneys maintain storage of their clients’ original documents. We do not, and we think this is an unwise practice. Clients and their families should not be forced to go back to their attorney to retrieve their own documents. Clients may move out of state or otherwise lose touch with their estate planning attorney. The estate planning attorney or law firm may die or disappear. And what does the attorney or firm do with documents for past clients who they can no longer locate? A recent Illinois statutory change now allows attorneys, for a fee, to turn over such so-called “orphan” wills to the Secretary of State as a last resort. This would then force the decedent’s family to realize that they need to make a request to the Secretary of State to find and retrieve the Will. If you are looking for a lost Will which an Illinois attorney might have maintained, consider checking with the Secretary of State.
Another bad idea is executing duplicate original wills. This subject was the topic of a recent Illinois appellate court decision. The decedent had apparently (although it wasn’t clear) executed duplicate original wills. Prior to his death, he (at least arguably) attempted to revoke his Will by burning it, however the duplicate original was not burned. In this case, the court held that since the duplicate original was not effectively revoked, the Will remained in force despite the apparent attempt to revoke. Duplicate originals simply promote confusion and ambiguity, and should be avoided.
Proper storage and safekeeping of your original estate planning documents will help allow your family to effectively carry out the estate plan that you thoughtfully created.