Tuesday, December 20, 2011

Honey, I lost my will!!

Hopefully you've done the proper thing and put together an estate plan.  But what do you do with the original will?  The original will is an extremely important document.  In Iowa, as in many other states, if the original will cannot be located, there is a presumption under the law that the decedent intentionally destroyed the will.  Even if you can find a copy of a signed will, it may not be enough.  It is possible to argue to a court that it was not revoked, but the law requires you to show by clear and convincing evidence that they did not destroy (revoke) the will.

So, some options and things to think about for storing a will:

  1. Keep it with the attorney - normally the safest, so long as the family can find the attorney and the attorney/firm is still in business. (We don't charge for this service, but we are a pretty cool law firm.)
  2. Keep it in your freezer - never understood the use of a freezer as storage.  Could get tossed out, cooked, freezer burned, or destroyed by accident.
  3. Keep it in your bank deposit box - Not bad, but could be an issue getting it out of the box after death.  Unless there is another person authorized, the only person capable of getting into a bank box after death is the executor.  You need an original will in order to be appointed executor.  (See the problem? Catch 22.)  Some banks can help you set the box up for access after death, but make sure you ask the question and get it taken care of.
  4. Store in house in [insert location] - As long as it is in a location where family can find it if necessary.  (I've had estates where we never found one that we knew existed.)  Risk of house burning or misplaced.
Moral of the post - Will is an important document to keep: store it in a safe location.

4 comments:

mike korner said...

Great tip Matthew. I agree this is a vital issue.

Also, thanks for the Estate Planning Basics ebook I found here: http://www.sullivan-ward.com/attorneys/matthew-d-gardner

Amy said...

So what if said will is being held hostage by the alleged executor ? Would an attorney notify anyone mentioned in the will or is it a game of hide and seek. Right now mourning and frustration are not mixing well.

Matthew Gardner said...

There is a legal requirement that the person in possession of an original will of a decedent file it with the court. There are penalties if they don't.

All heirs and beneficiaries are entitled to notice, but if there is limited information, they aren't required to hunt you down, as opposed to last known address.

Amber looking for a probate lawyer said...

Wow! Great tips -- keeping you will in a safe place is definitely important!