05 Sep 5 Options of where to Keep Your Will
Although Aretha Franklin’s last will and testament (found under the cushions of her couch) was recently determined to be valid, this is obviously not the best place to keep your last will since many things could have gone wrong for failing to keep it in a safe place. What if there was a fire? What if there was flooding or other natural disaster? What if a potential heir was disinherited obtained control of the will and destroyed it?
The following are 5 options of where to keep the original will (it is more difficult to probate a copy of a will since the original is presumed to have been destroyed if not located):
- Safe at home: One of the best places (if not the best) to keep your will is in a safe that is protected from the elements (fire, wind, water). Of course, someone you trust must have the combination or the key (or know where it can be located). However, if someone you don’t trust obtains the original will, there is the risk of destruction resulting in either a prior will being honored or assets being transferred by the laws of intestacy (without a will) that each state has.
- Safe deposit box: This is an option chosen by many, but there are problems with this choice. First, what if the named executor is not named on the signature card at the bank? The executor would have to either need to bring a copy of the will and have a bank employee present when the box is opened to see if the copy matches the original (in which event, the bank could either submit the original to the court or to the named executor) or get a court order to open the box to see if the original was located there. Of course, another problem is a bank isn’t open 24/7 which could result in a delay. Also, some trusted person needs to know it is stored there.
- Court clerk: Texas permits you to file your original will with the county clerk for a fee. The problem is if beneficiaries or the executor are unaware of the filing. Another problem is that people often move – which is another reason why a trusted person needs to know where the will is filed. Also, in some counties (i.e., Dallas), the clerk has to release the will to the court where the will is to be probated often resulting in some delay. Also, some county clerks require you give them names and addresses of who can claim the will (of course, many move and this could be a problem) along with a death certificate (which often takes several weeks before issuance resulting in further delay). The county clerk has no obligation to let your executor or beneficiaries know that it has the original will.
- With estate planning attorney: This used to be more common than it is today. Your attorney could die, move, retire, become disabled, or the will could be misplaced or destroyed (i.e., fire, water or natural disaster). As a result, we do not keep an original copy of the will (although we scan and keep a photocopy).
- Electronic: The future option: Some states permit electronic wills and storage of wills online, but this is not applicable in Texas at this time. During Covid-19, there was a temporary order suspending the law requiring in-person appearance before a notary with notarization being done remotely. However, that order has expired. Other than handwritten wills, a will must be signed in the presence of 2 witnesses. Further, to avoid the witness having to go to court, the testator and the witness should sign before a notary public. Nonetheless, with increases in technology, it is anticipated that electronic wills should be accepted and probably will be the norm in the future.
You should let your executor and a successor executor and trusted family member know that you have a will and where it is kept and how it can become accessible.
If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.