Where Are the Originals of Estate Planning Documents That Have Been Superseded?

Hmmmm, good question.  Probably one that you have never thought about. 

This issue came up for discussion during a recent departmental meeting.  As attorneys change firms, they may bring files and other documents with them to their new firm.  And, sometimes, those documents include originally signed Last Wills and Testaments of individuals who may not establish themselves as clients of the new firm.  So, what is the attorney to do with regard to the original Last Will and Testament of someone who isn’t a client?  And, have you been notified of the relocation of your documents as you should have been?  How long is an attorney expected to hold an original document not having been notified if the person has died?

Well, that is left to the attorneys to address, but in the meantime, here is what you can do proactively to help avoid such situations. 

First of all, if you have prepared Wills in the past, do you know what has happened to the superseded originals?  Were they left with the attorney who originally prepared them (even though you have had new ones prepared by a different firm)?  Were they destroyed?  Do you have them tucked away in a safe deposit box or filing cabinet at home?

Remember that the latest Will – hence Last Will and Testament – is considered to be the latest version of your wishes and intentions with regard to your estate and is the version to be used for administering your estate.  Having old Wills around could raise some issues or create emotions to surface.  Consider these situations to get your thoughts going:

  • You have been divorced and old Wills name your former spouse as beneficiary or fiduciary.  But, you have proactively had new estate planning completed. 
  • You have changed your mind as to the beneficiaries or fiduciary and have signed new documents. What could happen if old documents are found and once-named beneficiaries find out that they no longer are beneficiaries?
  • You have made out various Wills and have either destroyed or misplaced the most recent Will.  If the most recent Will is not found, the possibility exists that an older Will could be probated and followed after your death.

So, now that I have you thinking, there is no better time than the present to confirm that your estate planning is in order.  You may want to:

  • Contact previously used attorneys or firms that you used to ensure that they do not have any original estate planning documents.
  • Look around your home or in your safe deposit box for the originals of superseded document and dispose of them to avoid confusion.
  • Now is as good a time as any to review your most recent documents to confirm that your estate plan expresses your intent and wishes.
  • Finally, never make any handwriting notations on the original documents as this could be cause for invalidating them. 

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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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