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

February 23, 2017

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.

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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to amend your Will or if you replace it entirely with a new version, it will be easy for you to discard the old, out-of-date one.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!

     

  • With your attorney - Aside from keeping it at home, the next best alternative is to leave the original with your estate planning attorney.

    One benefit of storing your Will with your attorney is safety. 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. Keeping the document with the attorney also makes updating the Will and retaining the most recent version simple. In addition, it guarantees the original will stay in pristine condition and not be accidentally written on. Furthermore, if you want your attorney to assist your loved ones in administering your estate and going through probate, having the attorney retain the original is a great time saver.

    The downside is that many attorneys refuse to keep original documents after the engagement is concluded. The reason is simple - liability. For example, if the attorney's office is broken into or burns down or floods, then *poof* there goes the clients' documents. 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. Because the attorney assumes all the risk, one who does agree to store original Wills on behalf of clients may charge a fee for the service.

 

THE BAD

  • 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. 
     

  • 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.

 

THE UGLY

  • In the Cloud - Depending on your age, the "cloud" either fascinates you or terrifies you. With respect to the storage of your Will, age should not be a factor. Run...run far away. Yes, there are companies who offer digital storage of your estate planning documents. Yes, this is a great tool for things like powers of attorney or living wills. NO, this is not appropriate for your Last Will and Testament.

    Why is the cloud a bad storage option? It is because North Carolina does not recognize digital Wills. There are a few states that do, but we do not. We still require a hard copy original. I am not saying you should not scan your Will and store a digital copy somewhere secure (though 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). But, you cannot let it be your end-all, be-all. You cannot be tempted to discard the original and think the digital version of the original is just as good. It isn't! North Carolina may get around to accepting digital Wills in the next century, but for now, using an on-line, cloud-based service as your sole storage solution is your worst option. It's akin to not having a Will at all.

     

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.

 

Where is your Will currently stored? Do you have other creative suggestions like putting it in the freezer? Have you experienced the pain and frustration of not being able to locate your loved one's Will? Let us know in the comments!

 

 

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