We are moving further into a paperless era, which might lead clients to forget about the literal paper trail they're leaving. A lot of retired people keep a copy of their will with their lawyer, their financial records online, and don't give any of it a second thought.
But it's important to know where all those old paper copies are, if they exist at all. Older copies of a will or an estate plan can create confusion — or allow disgruntled heirs to sow confusion — about which is really valid. It's also dangerous to have just one original copy of these crucial documents, in case they are lost or destroyed, or the heirs somehow can't track them down after the client's death.
This is more than just academic. In a recent New Hampshire case Douglas King, a man with adult children, remarried and had a second, younger family. After the remarriage, he wrote a new will leaving most of his wealth to his new family, then later made minor changes to document.
King gave a copy to his lawyer and retained the original for himself. But when King died suddenly in a motorcycle accident, the original could not be found.
The adult children contended in court that since King no longer had the original at the time of his death, he must have intended to destroy it. Despite the existence of the copy, they successfully argued that King died intestate.
They introduced evidence that King's second marriage had been troubled at times — the second wife actually filed for divorce at one point — and that was enough to persuade the court that King might not have intended to use the second will.
So what should the client keep originals of, where should all of this be kept, and what documents should he or she dispose of? Here are some guidelines:
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Make sure the original can be easily found, no matter what happens. In the King case, the original copy of the revised will was never found, in part because King died very suddenly. The disgruntled heirs convinced the court that the will had been destroyed. The Supreme Court of New Hampshire noted: "When a testator executes both a will and codicil adopting a minor change to that will, and then destroys that will, it is clear that the testator's intent is to revoke his entire testamentary scheme." That's what led the court to contravene what appeared to be King's wishes and declare him intestate.
- Making multiple copies of a will can ensure the availability of an original when needed or when the heirs need to find it. But if the client makes changes or revokes the will, it's important to find and destroy all the other original documents. That will eliminate confusion about which are the "live" documents. Client should also keep careful records about who has copies.
- Originals shouldn't be stored in a safe deposit box in the client's name.If the client insists, it may be possible to make arrangements with the bank to ensure that someone else, such as an executor or an estate planner, can gain access. In some states, the box becomes sealed upon the owner's death, which could delay or even prohibit family members from retrieving them. They also may not be readily available in a medical emergency.
- If the client has already named a trusted executor, particularly one who lives close by, it can make sense to have a set of the original executed documents in a safe deposit box under that person's name.
- The National Hospice and Palliative Care Organization suggests noting on copies of one's health care directive (1) where the original will is kept;(2) that the executor has copies of the will; and (3) the client's doctors. If the client changes the directive, make sure they do so on all copies.
You may also want to explain to an assisting estate planner the pitfalls and rules about where originals should be kept and what should be destroyed, then offer to handle it all yourself. You could also establish portfolios of documents for clients, kept in a locked, fireproof safe, to help the client stay organized.
Even if they don't take you up on the offer, they'll likely appreciate the forward thinking.
