How Do I Store Estate Planning Documents?
It’s a common series of events: an elderly parent is rushed to the hospital in the middle of the afternoon and once children are notified, the search for the Power of Attorney, Living Will and Health Care Power of Attorney begins. It’s easily avoided with planning and communication, according to an article from The News-Enterprise titled “Give thought to storing your estate papers.” However, just because the solution is simple doesn’t mean most people address it.
As a general rule, estate planning documents should be kept together in a fire and waterproof container in a location known to fiduciaries.
Most people think of a bank safe deposit box as a protected place. However, this is not necessarily a good location for several reasons. Individuals may not have access to the contents of the safe deposit box, unless they are named on the account. Even with their names on the account, emergencies don’t follow bankers’ hours. If the Power of Attorney giving the person the ability to access the safe deposit box is inside the safe deposit box, bank officials are not likely to be willing to open the box to an unknown person.
A well-organized binder of documents in a fire and waterproof container at home makes the most sense. But not always. Here are some guidelines that I suggest to my clients in my law practice to answer the question”How Do I Store Estate Planning Documents?”:
Health-Care Power of Attorney. The powerholder (your agent) should have a stamped “True Copy” of you Health-Care Power of Attorney. I make “True Copies” regularly available to my clients. In addition, the powerholder should have a printable electroinc copy of the document. In the event that it needs to be “True Copied” my firm will provide this at no extra charge. Each of your health care providers should also have a copy of this document. I provide as many “True Copies” to my clients as they request without an additional charge. If “True Copies” are distributed to your powerholder, it becomes less important what happens with the original, which may be kept safe in a fireproof container.
General Power of Attorney. Like the Health-Care Power of Attorney, your powerholder (your agent) should have a stamped “True Copy” of your General Power of Attorney. Also, advance delvery to banks or other institutions is usually a good idea so that it is ready to use if the time comes. But it is not as important to give your bank your General Power of Attorney as it is to give your health care provider your Health-Care Power of Attorney. Your powerholder should have electronic copies.
Last Will and Testament. Keep in mind that court rules generally require that the original of the will be filed with the court. Although a copy of the will could be filed, this is not the first best choice. What I recommend you do with your Last Will and Testament depends on the circumstances. If you are disinheriting an heir (partially or fully) and that heir would have access to your house after you pass away, that heir would have an incentive to destroy the will. If there is any chance of this happening, you don’t want to keep your will at home, whether in a fireproof container or not. In some cases, it may not even be best to keep it in a safe deposit box. If this is a concern, you have two options. Your first option is to file the original at the Clerk of Court. Generally this will cost between $100 and $200 depending on the number of pages of the will. Your second option is to leave the orginal will with your attorney. I generally offer my clients the opportunity to keep the original will in my firm safe deposit box without an additional charge. If you are not too concerned about your will being destroyed by an angry heir, then you can keep it in your home, but I suggest that it be kept in a fireproof lockbox.
If your Health Care Power of Attorney is provided to each healthcare provider, they would be able to make it part of your medical record and it would be are accessible 24/7 to health care providers.
Power of Attorney documents may be given to each financial institution or agency in preparation for use, if and when the time comes.
It may feel like an overwhelming task to contact banks and brokerage houses in advance to make sure they accept a Power of Attorney form in advance. However, imagine the same hours plus the immense stress if this has to be done when a parent is incapacitated or has died. Banks, in particular, require POAs to be reviewed by their own attorneys before the document can be approved, which could take weeks to complete.
Durable General Powers of Attorney may also be filed at the parish clerk’s office. If a POA is filed but is later revoked and a new document created, or if a fiduciary needs to convey real estate property with the powers conferred by a POA, the document at the county clerk’s office should be updated.
Each fiduciary listed in the documents should be given a copy of the documents. This will be helpful when it’s time to show proof they are a decision maker.
Having estate planning documents properly prepared by an experienced estate planning attorney is the first step. Step two is ensuring they are safely and properly stored, so they are ready for use when needed.
BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning, incapacity planning, and asset protection.
If you liked this article, “How Do I Store Estate Planning Documents?” read also these additional articles: Are Vitamin D and Dementia Connected? and Using Estate Planning to Prepare for Medicaid and What Is a TOD Beneficiary? and Can My Gun Collection Be Part of Estate Plan?
Reference: The Times-Enterprise (June 11, 2022) “Give thought to storing your estate papers”