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Who will hold estate planning documents?

Albany, NY |

Who holds the will and living trust documents after they are created? Is it kept in the home or in a safety deposit box?


Attorney Answers 4

  1. The best place to deposit the original will is with the attorney who drafted it. That way there is no automatic presumption of revocation if it isnt found among the testator's documents. Do not keep it in the safe deposit box because it might contain important instructions which need to be followed before the safe deposit box can even be opened.

    This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing a course of action, it is always advisable to seek the advice of an attorney in your area.

  2. I believe that the client should have their original documents in their possession and that all successor fiduciaries should know where to find the documents, in the event of an emergency. The attorney can keep a copy, and should. But I do not believe the attorney should keep the originals.

    There is room for disagreement on that point, and Attorney Aminov's point about revocation laws is well taken. Those laws only apply if the documents cannot be found, however. I have had cases where family members have gone in and removed documents. As long as copies are available, this does not defeat the intent of the grantor(s).

    A safe deposit box is not ideal, because you may not be able to get access, in an emergency situation. But there are ways of making this work, if desired. I usually recommend that the clients keep their documents in a fire-resistant box, at home. The successor trustee should know where to find them. Copies of the DPOA and any medical directives should be on file with the bank and any doctor or hospital where the client would go to, respectively.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

  3. Both Mr. Aminov and Mr. Frederick give you good advice. You'll notice, of course, that their advice differs from one another -- which is fair, because every attorney brings his own approach to legal issues.

    Let me try to give you an answer that is both correct and shows my respect for both of these fine attorneys. Where you keep a will and other estate-related documents doesn't really matter so long as it is in a safe place, provided, of course, that it will be secure in case of a storm or fire. Bank safe deposit boxes are not the best place to keep such documents. Neither is a kitchen drawer.

    Whether to allow an attorney to hold on to the originals of these documents is a personal choice. If you do that, be sure to keep a copy at home, and attach a note indicating the name, address, and telephone number of the attorney, and the date that the documents were left with the attorney.

    When I hold on to a client's will, it is only with the client's direct consent, and with the client's knowledge that it is being kept in my old, turn-of-the-century fireproof safe.

    Good luck to you.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.

  4. I agree with Mr. Haber's answer. There are a few reasons I would suggest leaving it with the lawyer, and retaining a copy. If a person passes at home and it is sealed, no one will be able to get to the will until the police unseal the plaace of death. The surest way that your last will(as opposed to a prior) is probated is to leave it with the lawyer. This way, if a relative finds the original will and is not happy with its terms, you can imagine that it may not be locatable. There are many other scenarios under which I would suggest leaving it with the lawyer. However, request a copy. Anytime I send a copy of an executed will to a client, I stamp it with an old fashioned ink stamp on every page: "Original Maintained at Siegel & Siegel, P.C. ......" with my address and phone number. You could never imagine where the copy ends up and who winds up calling me to probate it! Also, like Mr. Haber said, most lawyers have a fire proof vault.

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