Executing a Last Will and Testament is one of the best things you can do for yourself and for your loved ones. Once your Will has been executed, you need to keep it somewhere safe. While your initial instinct may be to put it in your safety deposit box, doing so is not the best choice. A Huntersville estate planning attorney at Potter Law Firm explains why your safety deposit box may not be the best place for your Last Will and Testament.
Your Will and Other Estate Planning Documents
In many cases, an original copy (meaning one with an original signature in ink) of your Will (or other estate planning documents) is required for the document to work as intended. For this reason, your estate planning documents should be kept together in a safe place. Understandably, the first place many people think to store their estate planning documents is in their existing safety deposit boxes. After all, that’s probably where you keep valuable jewelry, deeds to property, stocks and bonds, and other valuables. At first glance, it makes perfect sense to put your estate planning documents in your safety deposit box as well. On closer inspection, however, your safety deposit box is not the best place for your estate planning documents.
The Problem with Keeping Your Will in a Safety Deposit Box
A better understanding of how the probate process works will help explain why putting your Will in your safety deposit box is not a good idea. Shortly after your death, your estate needs to go through the legal process known as “probate.” Probate serves numerous purposes, including:
- Identifying and securing your assets
- Authenticating your Will
- Paying debts of the estate
- Litigating any claims against the estate
- Paying estate taxes
- Distributing assets to beneficiaries and/or heirs
If you executed a Will prior to your death, you appointed someone to be the Executor of your estate. Your Executor is responsible for overseeing the probate process. To perform that job as intended, your appointed Executor must initiate the probate process with the appropriate court by petitioning the court to officially be appointed as your Executor. If the court approves the appointment, the court will issue Letters Testamentary which provide proof that the Executor has been appointed by the court and therefore has the authority to act on behalf of the estate.
The problem is that to initiate the probate process and secure the appointment as your Executor, an original copy of your Will must be submitted to the court. If your Will is in your safety deposit box, however, the bank may not allow access to the box without proof that the individual seeking access is the Executor of your estate. This becomes a “chicken and egg” problem. Your chosen Executor cannot secure the necessary Letters Testamentary to act as your Executor without your Will – but he/she cannot access your Will without the Letters Testamentary.
Similar problems can crop up with other estate planning documents as well. For example, an Agent with your Power of Attorney may have the legal authority necessary to access your safety deposit box; however, if the POA document granting your Agent that authority is in the box, your Agent has no way to prove that he/she is your Agent.
Where Should I Keep My Will?
Now that you understand why your safety deposit box may not be the best place to keep your Last Will and Testament, you need to decide where you should keep it. First, it is always a good idea to keep copies of your Will and other important estate planning documents. Ask your estate planning attorney to keep one copy. Also give a copy to anyone named to a fiduciary position within your plan. Your Executor should get a copy of your Will. A Trustee should have a copy of a trust agreement and an Agent needs a copy of a Power of Attorney. Finally, many people choose to keep the original set of documents at home in a fireproof safe or give the documents to a trusted family member.
Contact a Huntersville Estate Planning Attorney
For more information, please download our FREE estate planning worksheet. If you have questions or concerns about estate planning, or you are ready to get started on your plan, contact an experienced Huntersville estate planning attorney at the Potter Law Firm by calling 704-944-3245 (Huntersville or Charlotte, NC) to schedule your appointment; or you can reach our Kentucky offices at 606-324-5516 (Ashland, KY) or 859-372-6655 (Florence, KY).
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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