Where Did I Leave My Will?

By: Sanford R. Altman, Esq., retired

Question:
I’m having my will prepared and my son asked me where I intend to keep it? Frankly, I never thought about it. I’m considering putting it in my safe deposit box. Is that a good idea?

Answer:
General guidelines for any of your documents which, in the future, must be retrieved by someone else, is to keep them in safe but accessible place . In most cases, a safe deposit box is not such a place since you may be the only one who can gain access to it. In considering a will, the selection of where it should be for safe keeping is even more troublesome. It is possible that a bank will allow someone with your power of attorney to open your safe deposit box while you are alive. However, if they are looking for your will because you have passed away, remember that your power of attorney dies with you and they will no longer have authority to enter the safe deposit box. If, nonetheless, this is the place of your choosing, you need to make that person the co-owner of the box. Otherwise, your will may sit there until your family can convince a Judge to issue a court order to open the box.

Why is the location of your original will so important? As you may know, every will, in order to be effective, must be approved by the court. This is the probate process. Your family’s attorney must petition the court and prove that the will is valid. Once the Judge accepts the proof, the Judge will appoint an executor whose job is to collect your assets and distribute them to your beneficiaries. One of the essential items in proving that the will is valid is the original will itself. Without it, the whole process can screech to a halt putting off distribution until an alternate method of proof can be found.

With this in mind, the question, “Where is the best place to keep my original will?” is more easily seen as vital and, yes, after thirty years of law practice, I do have a story about this. Some time ago, a man whose father recently passed away came into our office to have his father’s will probated. He brought with him what he thought was his father’s original will which he had found in his father’s files, but, upon examination, it was apparent that the document was merely a very good photo copy. Our client had no idea where the original will could be found except to say that he assumed it had been prepared by a lawyer where his father formerly lived in a county far upstate. He did not know the name of the lawyer.

That was when our work of searching for the original will began. Our client searched through all the papers his father left behind including bank statements and checks from the time that the will was executed seeking the original document or at least the name of the attorney who might have it. We did internet searches and special sophisticated program searches for the people who signed as witnesses hoping they would have been on the staff of the law office which prepared the will. We even called the county’s Surrogate’s Court to see if the father’s attorney had filed the original with the court. All yielded no results until, weeks later, that same court called back advising that they had now found the missing will. This all set us back at least a month, but we considered ourselves fortunate since the alternatives would have taken much much longer.

So now we have three rules to follow:

1. Keep the will in a safe place;
2. keep the will in an accessible place; and
3. make numbers 1 and 2 effective by actually telling your nominated executors and family members where your original will has been stored.

What kind of places fill all three of these categories? The first choice for most clients is to leave the will with the attorney who prepared it. For example, in our office, all wills are stored in a locked, fire proof cabinet which probably weighs about 1,000 pounds. Our clients take home a copy for future reference and a hand full of our business cards to distribute to their nominated executor and other close family members. They are advised to distribute the cards with instructions that, “If anything happens to me, this is where my original will is located.” The will is always accessible by the client while he or she is alive and by the executor after the client passes away. All of the above make this choice safe, accessible to the appropriate parties and known to necessary individuals (all three requirements). Probably about 90 percent of our clients make this their choice. If you decide to keep the original at home, a fire proof lock box is a good choice as long as your nominated executor has the ability to open it and it is truly fireproof.

With all of the effort, thought and time that you put into having this important document prepared, it is only a will which can be found by your family which can truly carry out your wishes.