It’s a common series of events: an elderly parent is rushed to the hospital and once children are notified, the frantic search for the estate planning documents starts. It’s easily avoided with planning and communication, according to an article from The News-Enterprise titled “Give thought to storing your estate papers.” However, just because the solution is simple doesn’t mean most people address it.
As a general rule, estate planning documents should be kept together in a fire and waterproof container in a location known to and accessible by fiduciaries, and copies of some documents should be given to the fiduciaries in advance.
Most people think of bank safety deposit boxes for storage. However, it’s not a good location for several reasons. Individuals may not have access to the contents of the safe deposit box unless they are named on the account. Often a court process is necessary for permission to open a safety deposit box if no one is named on the account.
Even with their names on the account, emergencies don’t follow bankers’ hours and access may be difficult. Further, what if the Power of Attorney giving the person the ability to access the safe deposit box is inside the safe deposit box or the principal has died and the Will is in the box. Bank officials are not likely to be willing to open the box to an unknown person and proof of that person’s authority is in the box. This is like locking the key in the safe.
Even further, COVID and the economy have led many banks to close or not offer safety deposit boxes. Banks don’t want to maintain as many brick and mortar locations, so that means safety deposit boxes have to go.
When you store estate planning documents, a well-organized binder of documents in a fire and waterproof container at home makes the most sense.
Certain documents should be given in advance to certain organizations or individuals. For instance, health care documents, like a Medical Power of Attorney, Directive to Physicians (Living Will) and HIPAA authorizations, may be given to your agents, as well as to your primary care physician or to the medical facility if you go in for a procedure. This way, agents have the necessary documentation should an emergency occur, and medical systems can add the documents to their file for you. This way everyone (especially medical providers) are on the same page about your wishes and who will speak on your behalf.
Mary touched on other items that shouldn’t be kept in a safety deposit box in this article. https://www.galliganmanning.com/things-you-should-not-keep-in-your-safe-deposit-box/
Financial Powers of Attorney should be given to each financial institution or agency in preparation for use, close in time to when you expect to need it.
This may feel onerous, however, imagine the same hours spent communicating with banks plus the immense stress if the need to use it is time sensitive. Banks often want to review POA’s in advance of their use before accepting them, and that may take several weeks.
If your estate plan includes a trust, you’ll want your trustees’ to have a copy when you are ready to give it to them, and the original can be kept safe with your documents.
Wills are treated differently than POA documents. Wills are usually kept at home and not filed anywhere until after death.
Also, with all documents, especially the Will, it is important to track and keep safe the originals. You may sometimes be able to probate copies of Wills, but it’s better to keep the original secure and avoid the need to probate a copy. This is less critical for other documents, but the same policy holds.
Having estate planning documents properly prepared by an experienced estate planning attorney is the first step. Step two is ensuring they are safely and properly stored, so they are ready for use when needed.
Reference: The Times-Enterprise (June 11, 2022) “Give thought to storing your estate papers”