Safekeeping Original Documents

Where are your original estate planning documents?  In a safe place – right?  That safe place could be a safe deposit box at a bank, a fireproof box or safe in your home. Hopefully, not in a container that could burn or perhaps suffer water damage if there was a fire.  There are certain documents such as a Will that only one copy is signed and therefore, the only original.  If that document were destroyed, what would happen? 

There is the likely possibility that, if there is a photocopy, the photocopy could be processed through the Courts as the original Last Will and Testament.  However, that can be an expensive process. 

You feel comfortable knowing that your Will, life insurance policies, deed and other important papers are in your safe deposit box at a bank.  You have been told that, upon your passing, your executor can enter the box to retrieve the original Will to file the same with the Courts and be appointed as the executor.  However, there are some banking institutions that are not allowing entry to the safe deposit box to retrieve the original Will.  The executor will be told that they need a short certificate – the certificate issued by the Court to evidence the appointment of a representative of the estate, which can only be obtained by presenting the original Will.  That sounds so contradictory.  So, what happens now?

You can be firm with the bank that you should be able to retrieve the Will, but you may be told that you need the short certificate.  You can argue that you can’t get a short certification without the Will.  It can become a vicious circle.  And, unfortunately, a battle you most likely will not win.

We have had the experience that the executor has had to file documentation with the court to get permission to retrieve the Will.  This incurs legal and court costs and takes time.  In the meantime, there may be matters pertaining to the decedent’s estate that need immediate attention by an authorized representative. 

So, where is the best place to keep your original Will?  In the past, we would have said in a safe deposit box, but with some financial institutions restricting access after the death of the owner of the safe deposit box, we now do not necessarily feel that way.  If the owners of the safe deposit box include the name of the executor, there should be no problem.  But, if the executor is only listed on the box as an agent under a power of attorney, that authority dies with the box owner. 

Check with your financial institution as to what their policy is regarding the retrieval of a Will after a box owner’s death.  Maybe you really don’t need a safe deposit box.  Most paper contents can be replaced.  Perhaps your estate planning attorney offers the service to clients to keep the original Will as does Capehart.  Think about it and determine what is best for you.



About the Author

Kay Sowa is a paralegal in the Trusts and Estates Group at Capehart & Scatchard, P.A. She is an IRS Enrolled Agent, an Accredited Estate Planner®, and a Certified Trust and Fiduciary Advisor. She oversees the trust and estate administration practice for the firm. She is an accomplished author and lecturer who has frequently spoken on behalf of a number of organizations including the National Business Institute and the Institute of Paralegal Education.

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