Well, it’s about that time for New Year’s resolutions. Hopefully one of them is to do a Will. But once you do the Will, where do you put it? A safe deposit box seems like the perfectly logical place to store a Will and other estate planning documents. They are probably the most important documents you will ever have, so shouldn’t they be kept in the safest place?But is it a safety deposit box the best place? Or should you keep it in a fireproof safe in your home? With your lawyer? The court? Or somewhere else altogether?
One thing that I state now, and I’ll state it again (because it’s just that important): Whatever option you choose, make sure your executor knows what you did!
Although clients often instinctively want to put Wills in a safe deposit box, I personally prefer not to have my clients put their important estate planning documents there.
The problem arises with the fact that most banks seal a safe deposit box when informed of the death of the owner, and a court order must be issued to request that the box be opened to search for the Will. The banks will do this even if there’s a joint owner on the box. Although probate courts will generally issue this order “immediately,” in practice there is still a delay until the request is made to the court and the order is actually granted.
In New York, documents that are allowed to be released from the box are the original Will, any deed to a cemetery or burial plot and any life insurance policy for the named beneficiary. Everything else is inventoried (by the attorney and a bank official) and returned to the box.
The bank will typically then require Letters Testamentary or Letters of Administration (each being a letter allowing an executor or administrator to act on behalf of the decedent’s estate) before allowing access to the safe deposit box to remove all the other items. So, even if it turns out that there is no probate estate, you get to go to court anyway.
As you can see, there are administrative hassles involved with storing a Will or other estate planning documents in a safe deposit box. That said, for individuals who do not have another safe place to store a Will or prefer the safety of a safe deposit box, it may be the best choice.
Another option is to keep a Will with the attorney who drafted it. Again, this may or may not prove as easy as it sounds. For example, what happens if the attorney retires or dies? You also now have to remember to tell the attorney every time you or your executor moves. In addition, offices may move or close, and if you do not keep careful records, it may be difficult for your heirs to locate an original Will when the time comes.
The Internet does help in this regard, but it is not foolproof. What would happen if the attorney with your Will was nowhere to be found? Your heirs would have only a copy (if that) to submit to the court versus the original. That is more open to being contested and requires additional proof to be probated.
Finally, if the lawyer is not responsive for whatever reason, executors or others seeking to obtain estate planning documents from the attorney may also need to obtain a court order to compel production.
On the other hand, a lawyer’s office may be the best place to store a Will, depending on your circumstances. As long as the attorney has the Will and not you, it can never get “lost” or “destroyed” by a disinherited or disgruntled heir. You should weigh all factors for and against before making a decision.
Another option is you can file your Will with the court, which is also a safe option, but means that your Will becomes an official document, not a private one. If you decide to change the terms of your Will, you cannot get it back, so beneficiaries and former beneficiaries can see how their respective inheritances have changed (or been removed) during successive revisions. On the contrary, if a Will is a private document, you can destroy the original and all copies, and would be heirs who have fallen out of favor are none the wiser.
In addition, if you move out of the jurisdiction of the court, out of state or even out of the country, your court filed Will does not come with you. There can only be one original of your Will. That means if you drafted a Will while living in Westchester County, New York, and filed it with the Surrogate’s Court in White Plains, your executor and beneficiaries would need to obtain it from that court, even if you or they have since moved to Denver, Denmark or beyond.
It may be, after considering other options, that you decide to keep your Last Will and Testament in a fireproof safe in your home. This is often a good option and normally the one I recommend, especially if you have a safe that cannot easily be removed from the premises by anyone seeking to tote off valuables. In that case, if you also have a safe deposit box, I would recommend keeping a copy of the Will in there (clearly marked COPY, with instructions on where to find the original), in the unfortunate circumstance that the original can’t be readily found. Be careful not to create too many copies, since you may later revise important provisions of your Will and do not want multiple prior copies floating around that a beneficiary with a reduced share tries to “prove” is your correct and valid last Will. This can happen even among otherwise friendly parties, such as children and grandchildren.
What I don’t suggest you do is to put your Will in a shoebox or the freezer or in that special place that only your spouse would know. It almost shouldn’t need to be said but, those are not safe places. You don’t want to have your executor or heirs tearing apart your house looking for your estate planning documents.
As said earlier, regardless of the option you choose for storing your Will, make sure that your executors know what you did. The best estate plans only work if the right people know how to follow them and where to locate essential documents when the time comes.