Do You Have Your Original Estate Planning Documents?
One of the most common questions I receive as an estate planning attorney is where—exactly—should your original estate planning documents be kept once executed. My answer is always “somewhere safe where they can be located and used when needed.” A home office, filing cabinet, or any other location where you keep other important documents. Safes or Safe deposit boxes may also be appropriate, if they can be accessed by your loved ones in a time or crises. Your power of attorney, will, or trust offer little benefit to your family if they cannot be accessed. This is also true if the documents that are available to your family are only copies and not your original estate planning documents.
Many attorneys keep your original estate planning documents
Unbeknownst to their clients, many estate planning attorneys keep the original documents they prepare. This is particularly true with wills and trusts. Consequently, when tragedy strikes, your family is left with only copies of the estate plan, not the originals.
This can become even more frustrating for your loved ones when the attorney who has the original documents cannot be located. Attorneys can switch law firms or even professions without always leaving a way to be contacted. They can retire, move out of state, or even pass away. This can leave your family without any means to obtain your original estate plan.
Complications from not having the original last will or trust
Your last will and testament must be submitted to probate before it can be used to distribute your estate. This process is much simpler if your family has your original will. In most cases, with an original, your family will never have to go to court. However, if only a copy can be located, then the estate has to be started formally rather than informally. This means a hearing will be set to ask a Judge to allow the family to use the copy of the will.
Likewise, your family will need your original trust documents to administer your trust in your absence. Banks, investment firms, and insurance companies often require reviewing the original trust. Further, a title company will need the original trust to conduct a sale of any real property that is in your trust. Your family may have to go to court if an original document cannot be produced.
Why you need your original power of attorney
The majority of organizations will require your loved ones to present your original durable power of attorney before allowing them to act as your agent under the power of attorney. Banks, investment firms, insurance companies, and governmental agencies all require your original documents. Similarly, your original medical power of attorney must be presented to your doctors and hospitals before your agent under the power of attorney can assist with medical decisions.
How to know you have your original documents
The quickest way to determine whether you have your original documents is to review the signature page of each document. Originals documents will have ink signatures. If you cannot tell whether or not it is an original signature, then look at the back of the signature page. Original signatures often will leave an impression in the paper. Original documents may also have a raised or embossed seal near the notary depending on the state of execution. Lastly, make sure that there not a stamp on the documents indicating they are a “copy.”
If you do not have your original estate planning documents, then contact your attorney immediately to arrange obtaining the originals.
About the Author: Aaron R. Shahan is an attorney at Atlas Law, PLC. Aaron dedicates his practice to virtually all aspects of estate planning, elder law, and probate.
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