Safekeeping of Estate Planning Documents
While drafting is a critical consideration for everyone involved in crafting an estate plan, there is more to it. Don't get caught overlooking this important step!
Safekeeping & StorageAn attorney should have a secure storage site for all original estate planning documents. If the client opts to have the attorney hold the original documents, the attorney should be sure to do the following:
1. Advise the client, in writing, that the original documents will be released to the client at any time, on her request.
2. Advise the client to keep copies of all estate planning documents in a safe place where they are likely to be found by a family member or trusted friend should the client become incapacitated or die. The copies should be stored along with the attorney's contact information so that a person who finds the copies will know how to contact the estate planning attorney and how to obtain the originals if needed. The client should also inform loved ones of where to find the documents and should provide them with the attorney's contact information directly.
3. Keep originals of any duplicate documents. Certain estate planning documents, such as living wills, can be signed in duplicate so that there is more than one original. If both the attorney and the client keep originals of these documents, it is certain that one original will be available through the attorney if needed, and the client will also have access to an original to provide to healthcare providers for copying or to use if needed.
Specific AdviceIf the client opts to keep originals of all documents herself, the attorney should give the client the following advice regarding:
1. Health care documents. Originals of designation of health care surrogate forms and living wills should be maintained in the client's home for ready accessibility in case of medical emergency or for a future surgery or medical procedure. Clients should also be advised not to give away the originals of these documents. Instead, the client should make copies for health care providers or allow the providers to make copies to be kept with the client's medical records.
2. Powers of attorney. Original powers of attorney should be stored in a safe place, presumably in the home in case of need, but in a secure place in the home. The client must be advised that these documents are effective as of the date of execution, which means the agent has authority to act on the client's behalf immediately, even if the client is not incapacitated (? 709.2108, Fla. Stat.). If an unscrupulous agent, or one who develops a drug, financial, or other problem gains access to the power of attorney, the agent could access the client's financial accounts without the client's knowledge or permission.
3. Original wills and trust agreements. Original wills and trust agreements should be stored in a fireproof safe. Many clients will automatically store original wills in a safety deposit box, but this is not usually the best place to store an original will. If there is no co-tenant on a safety deposit box, when the time for probate comes, the box will not be accessible without a court order. Clients also should be reminded not to write on original wills or trust agreements, or remove staples to copy them. Clients should also not disseminate copies of their wills to beneficiaries or heirs because, if the client later decides to change the will, a beneficiary or heir who is unhappy with the change may be more likely to challenge the more-recent will.
At my law firm, we always implement best-practices to secure all estate planning documents in an encrypted folder on the cloud. This provides our clients with indefinite 24/7 access to all their important files. Before you decide, ask how YOUR documents will be stored, as it will save you time and potential aggravation in the long-run!