Where Should You Store your Estate Planning Documents?

 In Practical Matters, Revocable Trusts, Wills

So you’ve gotten your act together and executed your estate plan. What should you do with the documents? Should originals go into your safe deposit box? Should copies be sent to your children, agents and heirs? The answer is . . . yes. Or, to put it differently, there are many right answers.

Having the Lawyer Keep a Set of Originals

If a law firm prepared your plan, it may or may not be willing to hold the originals. Some may prefer to do so. Historically, law firms saw this as a great way to ensure repeat business. The thinking was that if the law firm has your documents, you would be more likely to return to it if you have questions or want revisions. And if you became incapacitated or after your death, your children or other agents would come to the law firm for the original documents and presumably would hire it for representation. Some law firms went so far as to include provisions in their form wills directing that the firm be hired.

Often, the result is that law firms have multiple water and fireproof file cabinets full of the original documents of clients with whom they have long lost touch. I’ve been practicing law for three decades and have some documents just as old. Being responsible for and keeping track of all of these originals can be a significant burden. As a result, more and more firms are refusing to keep originals, instead giving them to their clients to take with them.

My firm’s practice is to continue to keep the will and one original durable power of attorney because those are the documents where an original will be required. Copies of trusts and health care directives are usually accepted. We have found that clients often misplace originals or family members can’t put their hands on them when needed. However, we have instituted a policy that we’ve added to our fee agreements that we may destroy documents after 10 years if we have made diligent efforts to locate the client and cannot do so, so that we won’t continue storing too many more original documents of former clients we can’t locate.  Of course, all of the documents belong to the client and if she chooses to take all of the originals, that is certainly her right.

Avoid Using a Safe Deposit Box, Usually

Then the client has the same issue with her set of originals, whether she created them herself through a DIY program or has originals prepared by an attorney. Where to store them? The answer depends in large part on whether she cares if anyone sees the documents. If this is not a big concern, they may be kept in a file cabinet or desk drawer and she may simply let her agents know where they are. We usually recommend that they not be kept in a safe deposit box at a bank because this can make it difficult for others to get the documents when needed. But this may be the best course if the client is concerned about security and privacy. In that case, she must just make sure that her agent or agents have access to the safe deposit box. Of course, if the client has the only originals their safety is more important, meaning that they should be stored if possible in a box that is fire and water proof.

We also provide our clients with copies of their documents on paper and, if they wish, as electronic files. These don’t need the same security as originals unless the client wishes to protect them from prying eyes. The client or her attorney can send copies to children and other designated agents if the client wishes, again either as paper or electronic copies. But what about giving originals to agents, especially with respect to the durable power of attorney and health care directive? We generally don’t do so, advising that it’s better to keep all the originals in one place and simply let the designated agents know where to locate them when necessary. But sometimes when it’s clear that an agent is better organized or living in a more secure setting than the client, it can make more sense for the agent to hold a set of originals. This can be the case when the client is showing early signs of dementia (but is still competent to execute estate planning instruments).

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