So you’ve done the responsible thing. You’ve prepared a last will to protect your family when you die. Great – now where do you keep it? For starters, somewhere your loved ones can find it. But which place is most safe yet accessible, convenient yet confidential? This article will discuss a few options clients have in safeguarding their wills until the time comes to probate them.
The lawyer’s office
I offer my clients the ability to leave their will in a fireproof/waterproof safe in my office as a courtesy for a few reasons. First, its free. Second, your family will know where to find it when you pass away. Third, its better than taking the will home, “misplacing” it, passing away and having the court assume that you revoked your will. New York law presumes that if the original will was in the possession of the decedent and can’t be found, that it was revoked. I have seen copies of wills not accepted to probate because the original will was held by the decedent and unable to be located after their death. If the original was with the attorney and can’t be located, a copy may be acceptable. Other than the client, the only other party who can retrieve the will is the named executor after death. Before we give them the will, the named executor would have to show us a death certificate along with their ID.
The Surrogate’s Court
Another good option is filing the last will for safekeeping in the Surrogate’s Court of the county in which you reside, normally for a fee of $45. This way, even if no one can locate your original will and attempts to claim that you died without a will, the court will have the original on file and available to probate. I recommend this option to people who don’t completely trust their executor to locate their will after death because the executor would get more under intestacy (when there is no will). By depositing the will for safekeeping with the court, the executor can’t destroy or avoid looking for the will since any administration petition will require a search to see if the will is on file with the court. The major drawbacks of this approach are the filing fee as well as the need to re-file the will every time you change it.
A safe in the client’s home
A waterproof/fireproof safe in the home is a common place people keep important documents, including wills. Though not my favorite option, if the client insists, I advise them to make sure that the executor has the keys or code to the safe, as well as to the home in which it is located. If the client decides to take the will home, I warn them that any person who has an interest in not probating the will may destroy it or that it may get lost. I have spoken to countless clients who swear that their parents had a will, but are unable to locate it after their deaths.
You may have noticed that I didn’t suggest keeping the will in a safe deposit box at the bank. The reason is that, as we discussed in a prior article, your executor will need a court order to access the box, which adds unnecessary time, cost, and complexity. No matter where you keep your will, you should let your loved ones know how they can find it when you pass away. Being responsible doesn’t just mean preparing an estate plan, it also means making sure it can be executed efficiently.