You did the right thing: you went to an estate planning lawyer and had documents prepared.
What you do now? Perhaps it is easier to describe what you should not do.
What You Shouldn’t Do With Your Estate Planning Documents
You should NOT lose them. You should NOT put them in a place where they cannot be easily found. You should NOT interlineate changes, mark through names or addresses, or spill coffee on them.
Here are some true stories that illustrate the problems associated with keeping track of your estate planning documents.
First up: wills. For a will to take legal effect, the person who made the will has to die and the will must be offered for probate. A probate application involves filing the original will with the clerk of the court along with the application. So could go wrong?
The original will is lost.The adult child just knows that Mom or Dad had it somewhere in their papers, but now it cannot be found.
The fix is that if we can find a copy or otherwise prove the contents of the lost will, then it can still be admitted to probate.
Should I Put My Will In A Safety Deposit Box?
Some people keep their will in a safety deposit box. This is a very poor strategy if neither executor or beneficiaries know where the safe deposit box is located, or if they do know but were not given access rights.
We had a case where an out-of-state adult child could not find the will, but knew of a safety deposit box. Because he had never been put on the signature card, I had to file a motion and have a court hearing to get an order allowing the child to access the safety deposit box. Unfortunately, after all of that effort, it turned out that the box was empty.
In another case, my client knew about his wife’s safety deposit box and supposedly had access to it. However, after she died, my client discovered that the bank had closed that particular branch. There was no record about where, or if, his wife had moved the contents.
Should I keep my Original Will With The Clerk of the Court of my County?
Some people deposit an original will for safekeeping with the clerk of the court in the county where they lived at the time. The problem is that if you move, you will have to get the clerk to release the original to you or to the clerk of the court where the probate is pending.
I now have a case where the original will is in Ohio and I need it in Fort Worth. I need the clerk in Ohio to send it to the clerk in Fort Worth, but that seems to be harder than you would think in the age of the Covid-19 shutdown.
Should I keep my Original Will With My Lawyer?
Can you leave it at your lawyer’s office? Some law firms will keep original wills. But lawyers can retire or die, and law firms can go out of business. There is the added problem that your executor or beneficiary may not know the will, or the law firm, exist.
The answer is to put the will in a safe place, tell your executor and beneficiaries where it is located, and then don’t move it without informing them.
How Does A Trust Work?
Trusts present a different set of problems. Trusts don’t have to be admitted to probate, but there will be third parties that need to see the trust.
A Trust only applies to property owned by the Trust. So the grantor of a Trust will frequently deed real estate to the Trust. Before a title company will insure title to real estate, they will want to know who is the Trustee of the Trust and do they have the power to sell the property.
For real estate purposes, you can record a certificate of trust, which is a summary of the provisions of the Trust in the real estate records where the real estate owned by the trust is located.
I have had cases where property has been deeded to a trust, but no one can find the Trust document. It can be possible to prove up the terms of a lost Trust document, but only if you have some way of proving what they were.
What is a Power of Attorney?
A power of attorney that appoints an agent to deal with real estate can be filed in the real estate records in the county where the real estate is located. This is necessary for the agent to act regarding the real estate and it is also a way to keep a permanent record of your power of attorney. If your original is lost, we can get a copy from the county clerk.
In the event of death or incapacity, we all want to make things as easy as possible for our families. To accomplish that purpose remember three things:
- Don’t lose your estate planning documents;
- Don’t put your documents where it is difficult or impossible for the person who needs the documents to get them; and
- Record a trust certificate and power of attorney regarding real estate in the real estate records of the county where the real estate is located.
With more than 40 years of experience, Robert S. Morris practices in the area of Elder Law, Probate, and Estate Planning. As a probate lawyer, Mr. Morris regularly handles probate and guardianship matters in Denton, Collin, Tarrant, Wise, and Dallas County. You can find him at Hammerle Finley Law Firm, located in Lewisville, Texas. Schedule an appointment with him today!