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DIY Estate Planning Mistake #18: Keeping Your Estate Planning Documents a Secret

Posted by Nina Whitehurst | Aug 26, 2020 | 0 Comments

Creating and executing estate planning documents is just the first step. Once you have completed the documents, you need to know what to do with them. 

All estate plans should include, at minimum, two important planning instruments: a durable power of attorney and a will. A trust can also be useful to avoid probate and to manage your estate both during your life and after you are gone. In addition, medical directives allow you to appoint someone to make medical decisions on your behalf. Once you have all these essential estate planning documents, you need to make sure they are stored properly and get to the right people.

Almost every day I read a question in an "Ask A Lawyer" online forum about what to do about finding a missing will.  The problem usually is that the person posing the question is distressed because he knew for a fact that his mom or dad or uncle or aunt or other loved one told him that he was to inherit X, but now that the benefactor has passed other family members can't seem to find the will or it has been "disappeared", the end result being that the person posing the question is being disinherited.  Funny how that happens.

What should mom or dad or aunt or uncle or other loved one have done?  My advice is to leave the will in the safekeeping of whomever stands to lose the most if the will is "disappeared". 

For example, if you are leaving everything to charity and intentionally disinheriting your intestate heirs, deposit the will with the charity.

As another example, if you are intentionally disinheriting a particular child, leave your will in the custody of a responsible child who is not being disinherited, or perhaps with the trust company that you have designated as your executor.

If you choose to store your will yourself, then follow these instructions:

Store the Documents Properly
Your estate planning documents should be stored in a safe, secure location that is accessible to your personal representative (also called an executor), the person you appoint to handle your estate's affairs after your passing. Some law firms will store your original signed documents for you, although this is becoming more and more uncommon as home safes become more affordable. If you want to keep them at home, you should use a water- and fire-proof safe or filing cabinet or file envelope. Do not use a safe deposit box in a bank because these can be hard for your representative to access. Often the documents giving your personal representative the right to access the safe deposit box are themselves in the box. If you do use a safe deposit box, you may want to have a joint owner on the account.

Spread the Word
It is critical that you tell your personal representative where the documents are located so that he or she can easily access them when needed. If the documents are locked away, your representative needs to know the combination or where the key is located. 

You should also talk to other people who might be affected --such as your agent under a power of attorney or a health care proxy--about what you want if you are unable to communicate your wishes yourself. Doing this ahead of time will help them execute your wishes when the time comes. You may want to give family members copies of your documents. If an original document is lost, the court may accept a copy in some circumstances. 

Avoid Confusion
Make sure you destroy any old estate planning documents that are no longer valid. Old documents can cause confusion among family members and could lead to litigation. 

In addition, do not write on your current documents. If you want to make a change, contact us to formally change the document. Handwritten additions are usually not valid and could raise questions about the document.

 
 

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...

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