Completing your estate plan is vital to ensuring that your family is cared for and your assets are distributed according to your wishes. However, all the time, money, and effort put into establishing your estate plan may have been wasted if those documents are lost or destroyed.
In Oregon and many other states, the original copy of a person’s will must be submitted to the probate court for verification of its authenticity.
If the original cannot be provided, the court is not obligated to follow the terms set out in an alleged copy and may treat the probate estate as if no will exists at all. If no copy is able to be provided, the court must treat the probate estate as if no will exists. This means the court will follow state intestacy laws for the distribution of your assets.
Similarly, if a will is damaged, altered, or found in a questionable condition, it may also be deemed invalid.
For trusts, a copy of the trust or related amendments can be considered valid, but copies will not have the same legal protections as the original documents. This is because in any instance where the validity of the trust is questioned, the trustee may be required to file a court action to establish that the copy is the true trust and that it can be used in place of the missing original document.
The validity of copies of Powers of Attorney, both durable and healthcare, often depends on who is requiring the document. In some instances, the original copy will need to be provided for a copy to be made and then kept on file, while another institution may accept a copy or only accept the original. Because of this, it is vital that the originals be kept safe and accessible.
Storage
A common method for securing estate-planning documents is the use of a safety deposit box. While definitely a safe place, the use of safety deposit boxes has fallen out of favor due to the cost and potential difficulty in gaining access.
If something were to happen to your chosen agent or representative, their successor might not have the ability to gain access to the safety deposit box. In some instances, simply gaining access might require a costly and lengthy court action.
The best place for your estate-planning documents is in a fire- and water-resistant document container, such as a safe or “file safe,” stored in your home. Such containers can be found at many retail and hardware stores like Fred Meyer or Home Depot, as well as online retailers like Amazon.
The most important things to consider when choosing a container are ensuring that it is large enough to hold all necessary documents and items without causing damage, and that it is rated to withstand a house fire for at least one hour and to resist water for at least 72 hours.
Keep in mind that some models may claim to be “fireproof” or “waterproof” when, in reality, most are simply fire- and water-resistant. Because of this, it is important to pay attention to the product’s specifications. You may also want to research customer and third-party reviews of document containers.
In addition to what kind of container your documents are kept in, it is also necessary to choose a safe location in your home to keep your container. Ideally, the document container should be kept in a more private location that limits its visibility, such as a bedroom or office.
You must also decide who to inform of the location of the container and who should have the ability to open it with either a key or combination. The ideal choices for who should know the location are trusted family members, while access to the documents themselves should be reserved for those you have chosen as your personal representatives and/or trustees.
Your Safety
The last thing to consider is that of your own safety. Whether you have a protective container for your documents or not, if there is ever a fire or some other emergency, please consider your own safety over trying to retrieve your estate-planning documents. With your estate-planning documents properly stored, you will make that decision all the easier.
In considering the proper storage of your estate-planning documents, now may also be a good time to review those documents to see if any updates are necessary or whether perhaps you need assistance setting up your estate plan.
Please feel free to contact us if you have questions about or need assistance with your estate planning. Remember, it’s important not to put off your estate planning.
You may also be interested in obtaining a copy of Estate Planning (in Plain English)®, written by members of this law firm and available through Amazon, Barnes and Noble, Bookshop (an online bookstore that allows you to support your favorite independently owned bookshop), and wherever self-improvement books are sold.
Photo by Immo Wegmann on Unsplash
