You’ve just left your attorney’s office having signed your estate planning documents. These documents may include a Will, and one or more Durable Powers of Attorney. Your lawyer said to you “Keep these originals in a safe place and don’t lose them.” This sounds easy enough to do, but the lawyer never explained how to keep them safe, or the importance of keeping them safe. This article explores both these questions.
Any secure place can be used to store original legal documents. The trick is to let a trusted family member know where these documents are stored, and how to access them if need be. These documents can be stored in a safe or a locked file cabinet in your home or office. If this is done, remember to share the lock combination or provide an extra key with someone you trust. A bank safe deposit box can also be used, in which case the trusted family member should be given a spare key to the safe deposit box, or perhaps have their name placed on the box jointly with yours to ensure easy access should the need arise.
A careful attorney will also make a note in the file when you sign your documents regarding where the originals will be kept. When this is done, a family member can contact the law firm who prepared the estate planning documents and efficiently determine the most likely location of the original documents.
Powers of Attorney
Suppose Uncle who still lives at home has advanced dementia and is unable to care for himself. He signed both a Durable Power of Attorney and a Healthcare Power of Attorney, but the neither the original nor any signed copies were ever distributed to anyone, and no documents were recorded at the courthouse. Who will draw from the bank account to pay Uncle’s bills, or take care of other financial and/or medical decisions?
Powers of Attorney can take care of one of both of these types of decisions, and those original, signed Powers should be kept in a safe place, as described above. But what if the original cannot be located when it needs to be used on Uncle’s behalf?
Without an original Power of Attorney to show to the bank teller or health care provider, a supposed agent’s authority to act for Uncle will not be recognized. The only other option is to have a guardian appointed to act for Uncle. However, guardianship is a court-supervised process, is lengthy and time-consuming, and can cost several thousand dollars at minimum to complete.
As noted above, the careful attorney will note where the original, signed Power of Attorney is kept. The attorney will also give copies to each appointed Agent, and will instruct that a copy of any Healthcare Power of Attorney be given to the client’s doctor.
The attorney should also suggest that the original Durable Power of Attorney be recorded at the courthouse. Recording of such a document costs little. Also, if this original document is recorded and the original is later lost, a certified copy can be obtained. A certified copy is just as effective as the original, signed Power.
Next, suppose Mom has just passed away. You take her Will that you found in her desk drawer to an attorney’s office to open up, or probate, her estate. You hand her Will to the attorney who says “This is only a copy – we need the original signed Will to open the estate.” Your eyes glaze over. Now what?
To open an estate, Pennsylvania law requires, among other things, that the original, signed Will be presented. A copy of a Will is extremely difficult to probate, as strict criteria must be proven in court. These criteria often cannot be met. Thus, it doesn’t matter who or how many times Mom told you or others what should happen to her possessions at death. If the original, signed Will cannot be presented for probate, there is a good chance that Mom’s wishes with regard to property disposition will not be effectively carried out.
Where the original Will cannot be located and a copy cannot be probated, Pennsylvania law resorts to intestacy, and considers Mom to have died as if she had never made a Will. Pennsylvania intestate succession statutes are complex and take into account a number of factors, such as surviving relatives, and their degree of relationship to the decedent. These statutes control disposition of a decedent’s property in cases of intestacy. The results can be devastating and can strain family relations. For example, if Mom’s Will left her entire estate to only three of five children, and that original Will cannot be found upon her death, those three children may feel cheated out of their expected inheritance when the estate now has to be divided equally among all five of them.