Where Should You Keep Your Will?

safety-deposit-boxI routinely provide my clients with suggestions on where to keep their will and other estate planning documents.  The original will is required for probate.  If only a copy can be found, the testator is presumed to have revoked the will.  Testimony can be presented to overcome that presumption, but it is certainly less risky, much easier and less expensive to present the original will.

Regardless of where you keep your will, it is very important that your family and executor know where to locate your will and estate planning documents.  That location should not be kept a secret unless you suspect family members may not want your will produced.  In that case, only tell your executor where your estate planning documents are and how to reach them if you become incapacitated or die.

Some clients tell me they intend to keep their will and other estate planning documents in their desk at home or in some other home filing system.  If that is where other important papers are kept it may be okay, but simply having important documents kept in such a manner leaves them more open to destruction by theft, fire or other natural disaster.

Other clients use fireproof safes installed securely in their homes.  These are certainly a step up from a simple file folder.  But be sure your family and executor know how to get inside the safe.  That may not mean giving them the combination, but you need to tell them where they can find the combination when they need to get access.

In my experience most clients who tell me where they store their estate planning documents most often mention a bank safety deposit box.  These are very secure.  However, unless there is a joint signer to the box who possesses (or who can obtain) a key, there will be a problem getting the will out of the box after the testator’s death.

The best way to solve this problem is to have at least two people at all times who can access the box.  This works well for married people, but once one spouse has died, the surviving spouse or any single person should think about providing joint access to another person so that when the second spouse or single person dies, getting the will is easy.

If you decide to have a person (other than a spouse) sign as a joint registrant on your safety deposit box be sure you select someone you have great trust in.  You may want to think long and hard about whether to select a relative who would receive an “intestate share” as an heir if you died without a will, but who will receive nothing if the will in the safe deposit box is probated.

If no joint registrant is on a safety deposit box, they cannot locate the key or the joint registrant is not available, the safety deposit box can be accessed by obtaining an order from the appropriate probate court.  Practically, it may be wise to speak with the bank where the safety deposit box is located to determine if they have any preferred method for proceeding.  An experienced probate attorney can then advise how best to proceed.

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