Most people have been advised to keep their estate planning documents, including their Last Will and Testament (“Will”) in a safe place, like a safety deposit box at their bank. Makes sense, right! These boxes are supposed to be waterproof, fireproof, secure from theft, etc. Yet, when you pass away, your loved ones may and likely will have many issues.
Consider what happens if you do not tell your loved ones that you have a Will? There are many people that do not want to share the existence of their estate plan with their loved ones. Or, they do not tell their loved ones where their Will is located. What happens if you do not tell your loved ones that your Will is in safety deposit box? When you pass away, if your loved ones do not know about your safety deposit box, your loved ones may go to court and say you did not have a Will after they did their diligent search and inquiry. If you pass away being considered that you did not have a Will, even though you had one but your loved ones could not find it, your estate (your stuff) may be distributed very differently than you had wished; the distribution will be based on the state's law. For example, if your Will says distribute 50% to my spouse, 30% to my son, and 20% to my sister, if you pass away without a Will (because it could not be located), your spouse will receive 100% of the estate. Is that what you wanted? No! Yet, that's what will happen. Also, have you thought about people that will locate your Will and simply report that you did not have one! That's an entirely different story for another time.
If your Will is in safety deposit box, your loved ones may need to get a court order to open the box. Or, the bank representative does not know the law and does not deposit the Will with the local court. Or, if they do, but you moved away from that area, your loved ones are going to have to open a case in the county where your Will is located to request that it be transferred to county where you resided prior to your death. I can tell you from personal experience that that is a fun one to deal with (insert sarcasm). So, as you can see, you are adding to the expense of administering the estate, adding to the time and effort and stress to your family who are grieving but now have to deal with bank representatives, lawyers, and different courts.
What if your Will disappears from the safety deposit box? Yes, even though the boxes are supposed to be safe, there are many instances where documents, jewelry, coins, etc., have disappeared. A 2019 NY Times article shed lights at the horrors of people who have lost their prized possessions even though they thought their stuff was safe in a safety deposit box at the bank.
So, what do you do?
- Your attorney may be willing to keep the original.
- You may keep it in a binder with your other estate planning documents.
- Keep it in a safe at your home where at least one very close family member know the code.
- Have a list where you indicate where your assets and documents are located, especially for people who have no family or children close by. Think of the fact that they are almost like strangers stepping in to handle your affairs when you pass away, not knowing where you hold documents or assets.
- Make aware your named personal representative in your Will that you have a Will and where it is located. Yes, it is a good idea to provide him/her with a copy. Also, it is a great idea to tell them when you change your Will.
- Have a trust. If you hold assets in a trust, those assets have to distributed to your loved ones according to the trust terms, which is extremely hard for someone to say a trust did not exist when assets are held in the name of the trust. Assets can be put into a trust only after a trust is executed. Plus, if you are older or your capacity starts diminishing, if an unscrupulous person tries to have you sign a new Will, it will be less impactful if assets are held in a trust. A Will cannot change the distribution of the assets held in trust. Bingo! Protection!
We are always here to provide guidance and help you to be sure you are protecting yourself first and then your family. Call our firm at 239-529-8731 or attend one of our free workshops to learn more about your options. You can also email me [email protected]