Banks Gone Wild – Beware Where You Store Your Will and Other Estate Planning Documents

Any adult should have three core estate planning documents: (a) a will, (b) an advance directive (commonly known as a living will and/or health care power of attorney) and (c) a general durable power of attorney.  To the extent, personal and financial factors warrant it, one or more trusts may be advisable.  After they are executed, it is imperative that they are stored in a safe place.

Unfortunately, many individuals either misplace these important documents or store them in an inaccessible setting.  The greatest challenge that has arisen over the past two years has been the storage of a Will at a bank safe deposit box.  In the early 1990s, the State of New Jersey changed its statute to allow for the designated executor of an estate to access a safe deposit box so he or she could retrieve a decedent’s Will.  The executor would need to provide a certified copy of the death certificate to the bank.  However, the statute streamlined the initiation of the estate administration process.

Inexplicably, over the past two years, a number of banks have taken the position that a designated Executor can no longer obtain the Will unless they have a short certificate evidencing their appointment from the county Surrogate or a Court Order authorizing access to the safe deposit box.  The former is impossible as the Surrogate won’t issue a short certificate absent production of the original Will.   The latter potentially generates an unnecessary cost to the estate as Court orders typically are issued after a filing fee and pleadings to obtain same.

Fortunately, it appears that the local county Surrogates will issue an Order upon request to access the safe deposit box, but to have the Will sent directly from the bank to the Surrogate.  Although this appears to be done without additional charge, it requires an additional trip from the designated Executor to the Surrogate’s office.  When confronted with the state statute, banks are stating that they are chartered elsewhere and not subject to New Jersey law.  In short, it is an absurd position.  However, it exemplifies that individuals should be careful where they store their Wills, Living Wills and Powers of Attorney.

Here’s my tips as to storing your estate planning documents:

• Where Should They Be Stored –
  1. Wills – It is imperative that a Will be stored in a safe place. In New Jersey, the county Surrogate can only admit an original Will to probate.  If the original Will cannot be located after the testator dies, the only way a photocopy of unexecuted copy can be admitted to probate is through a formal court action.   In addition to the significant cost to file this action, the party seeking to admit the copy must bear the burden of overcoming the presumption that the Will was destroyed by the testator, and that burden must be met by clear and convincing evidence.

On more than one occasion, I have encountered instances in which Wills “disappear” after an individual dies when there is an unequal distribution among children or similar circumstances where a potential beneficiary is unhappy with the terms of the Will.  Thus, the Will must be stored safely.

I recommend that the original Will be stored at the law office of the attorney who drafted it.  A competent law firm should offer this to its clients.  In the alternative, a safe at one’s home should be sufficient.  However, it should be fireproof.  If one or more trusts have been executed, these options should be used as well.

1. Advance Directives and Powers of Attorney – Many people feel the need to place these in a safe deposit box. Aside from the obstacles discussed as to Wills, this is just impractical.  For example, if you are in a car accident at 9 pm on a Saturday night, the bank wouldn’t even be open to provide these documents.  A law office would not be a proper place either.  A safe place at your home should suffice.  If you are aging and having health issues, the residence of the agent under these documents may be an appropriate alternative.
2. 2. Who Should Know – Some families feel the need for everyone to know everything. Although candor is a good principle in life, it is not always practical.  There are enough occasions in which I and other attorneys have seen where one child gets bent out of shape when his or her brother or sister are appointed as a fiduciary.  It is not uncommon in these situations to see a frail parent brought to an attorney by this child to change the agents.  Thus, in my opinion, the best course of action is to let the agents know that they are appointed and where the documents are located in the event they are needed, but to otherwise avoid discussing the matter.
3. Changing Documents – From time to time, individuals change their Wills, Living Wills and Powers of Attorney. In that event, it is imperative to shred old documents.  If another party has them, that party needs to return them so that they can be destroyed.  In addition, if the documents have been registered with financial institutions, such institutions needs to be notified of the change and the revocation of the old documents.