The Good, the Bad, and The Ugly: 5 Options for Storing Your Will

If I had a nickel for every time a client has asked me some form of this question, my niece and nephews would never have to worry about paying for college! In fact, this comes up so frequently that I decided it would make a great blog post. I figure if my clients are asking the question, there are a lot more people out there wondering the same thing.

THE GOOD

• At home - People often don't realize that one of the best options is the simplest option: keep the Will at home. This does not mean shoving it in a drawer or using it as emergency kitty litter. It means storing it in a safe, secure location. I often suggest clients use a fireproof-waterproof lock box. Some attorneys, I kid you not, suggest putting the Will in a heavy duty freezer bag and storing it in a deep freezer. The rationale behind this is that a deep freezer (or even your refrigerator) can survive a whole host of catastrophes, including most natural disasters. The benefits of storing your Will at home is that you have easy access to it. If you do a codicil to amend your Will or if you replace it entirely with a new version, it will be easy for you to discard the old, out-of-date one. Also, the person you name as the Executor of your estate should be able to access it without too much trouble. There are downsides to storing your original Will at home though. One problem is that "easy access" can also make it easy for the wrong person to get his or her hands on it. Your Will could mysteriously become lost or accidentally shredded or conveniently used for kindling. Also, short of installing a panic room or bank-grade vault in your house, keeping the Will at home makes it easily removable from the house. For example, if someone breaks into your home, your lock box could get stolen, and with it, your original Will. If you store it in a gun safe or something that has a combination lock on it, will your Executor know the combination? There may also be the temptation to mark changes and write notes on your original Will. But, marking on your Will actually invalidates it!

• In the Cloud - Depending on your age, the "cloud" either fascinates you or terrifies you. In fact, in an earlier version of this post, I categorized "in the cloud" as the ugly option. But, as time goes by and encryption and safeguards improve, the cloud should not be so scary any longer. To be clear, though, I am only referring to storing a digital version of your estate planning documents. North Carolina does not recognize digital or electronic Wills. There are a few states that do, but we are not one them...yet. The North Carolina State Bar has a committee investigating the practicalities of implementing an electronic will law, but I imagine it will be awhile before it gains any traction. So, for now, we still require a hard copy original. The reason I am advocating for cloud storage is it takes more effort to access than a file simply stored on your desktop, laptop, or tablet. I would caution you against saving a copy on your home computer where anyone - particularly someone who believes they stand to gain something or someone who would be surprised to find they were excluded - can find it. Just don't let the digital version be the only version. Do not be tempted to discard the original signed document thinking that the digital version of the original is just as good. It isn't!

THE BAD

• With your attorney - This was once a very popular option, and some older practitioners may still prefer to hold on to their clients' wills. I understand the allure from a safety perspective --- any one who might have an incentive to dispose of your Will before it can be presented for probate (such as someone who knows or suspects they have been disinherited by the Will) would not have access to the Will if held by your attorney. However, times have changed. The world is much more mobile than ever before. People do not stay in one town, one state, or sometimes even one country for the entirety of their lives any longer. And that's what makes this a bad option. Many attorneys simply refuse to keep original documents after the engagement is concluded. The reason is simple - liability. If the attorney dies or shuts down her practice, then someone has to track down all of the clients who left originals with that attorney so that the originals can be returned to them. In an increasingly mobile society, tracking down past clients, heirs, or family members could consume hours of time and there's no guarantee of success. Liability is also an issue in the event the attorney's office is broken into or burns down or floods and *poof* there goes the clients' documents. Because the attorney assumes all the risk, one who does agree to store original Wills may charge a fee for the service. I'm sure you are thinking "but my home could flood or burn down or be broken into too." That's why the attorney should hold on to a copy of the signed document as a safety net or redundancy. It's also why storage in the cloud is a good option.

• At the bank - If your first reaction is to put your Will in your safe deposit box at the bank, then you are not alone. Yet, this is a bad idea. The only upside to this is that it is safe. However, the safety aspect is also its biggest downside. If your Will is stored at the bank, then it is so safe no one can get to it without court intervention. Unless you have included the name of your Executor as someone who can access and remove items from your safe deposit box (and in some counties, even if you have named the Executor), arrangements must be made with the Clerk of Court's office to have someone from the Clerk's office present when the box is opened, and I guarantee you that person will not be available as quickly as you would like. The Clerk's representative is in charge of making an inventory of all of the contents of the box and noting whether the Will was located or not. Of course, your estate has to pay the Clerk's office a fee for this "service." You will also have to pay the bank for drilling open the box. Aside from the financial costs, storing the Will at the bank will result in significant time costs. A delay in getting access to the Will is a delay in starting the probate process, which delays your heirs getting their inheritance. Having it stored at the bank also creates problems when we need to get to it on a weekend or a bank holiday or at night.

THE UGLY

• At the courthouse - Some states have a robust, well-established system for recording Wills at the courthouse. North Carolina is not one of those states. While we do allow for citizens to "deposit" their original will at the courthouse, I have heard nothing but horror stories from my fellow attorneys about this option. I cannot profess to have personal experience, but it is my understanding that there is no real filing system at the courthouse (at least not in Wake County) for these Wills. There is no scanning, no labelling, no computerized registry, no good organizational system. A Will that is deposited for safe-keeping (Ha!) gets put in a room along with all other Wills, and there they all sit until someone comes looking and unearths the desired document from the dusty piles. In short, I do not know of anyone I dislike enough to suggest they trust the security, safety, and protection of their Will to the court.

In truth, there is no magic pill, no "one size fits all" solution. You have to decide what works best for you and your family. All of these options have pros and cons. Whatever you do, be sure and do these two things: (1) tell the Executor named in the document where the Will is stored and (2) remember yourself where it is so you can replace old versions with new ones. I would also caution you against attaching things to your Will with staples or paper clips since they leave impressions which could cause someone to raise questions about whether the Will has been altered or pages removed.