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Someone holding their hands over a model home to symbolize safely storing estate documents

Help preserve your estate plan by protecting your vital documents

by Curtis Lee | Contributor
October 12, 2022

There's the potential for your carefully prepared estate planning documents to get destroyed or lost before your personal representative and other appointed people get a chance to use them to carry out your wishes.

You can take steps to reduce the chance of this happening, although each approach has its advantages and disadvantages.

If you've created an estate plan and accompanying documents, you're ahead of many people in planning for your future affairs. Your estate plan is also an integral part of making your financial, personal and medical wishes known to others.

But to ensure that these plans and requests are properly carried out, you need to make sure that the appropriate individuals are aware of your estate planning documents and know where to find them.

In most cases, this isn't a problem. Yet life is unpredictable and sometimes the unthinkable or unanticipated happens. You want to avoid a situation where all your planning is for nothing because no one can find the documents or if they can, there's something wrong with them.

Before we discuss ways to protect the documents that you worked hard to create, let's look at what kind of documents need to be protected.

What kind of estate planning documents need protecting?

All of them. If you have documents that outline what you want someone else to do or decide on your behalf, you want to take steps to protect those documents.

Whether you've passed away, are out of the country or are incapacitated, you also need to ensure that the necessary individual, such as an executor or administrator, can access the documents. Types of estate planning documents you'll want to take special steps to preserve include:

Consider the above as a rough estate planning checklist. You can confirm you've not only created the document (or at least considered whether you need it), but also decide if you have a plan to protect the documents from unexpected events.

Other important documents and estate planning information you may want to have readily available for your appointed representatives include:

  • Beneficiary designation forms
  • Copies of financial and property documents, such as deeds, life insurance policies, vehicle titles and bank account records
  • Digital login and password information for things like online banking, social media accounts, streaming services, utilities and digital storage services
  • Funeral and/or burial instructions
  • ID documents, such as a passport, birth and marriage certificate and Social Security card

What could happen to estate planning documents?

There are any number of potential threats to your estate planning documents. Like any other physical possession you may own, they're at risk of getting lost or destroyed. Here are some examples of how that could happen if you keep these documents at home:

  • Documents get misplaced during a move.
  • There's a flood, fire, earthquake, tornado, hurricane or another natural disaster that destroys part or your entire home.
  • Someone steals the documents during a burglary.
  • You have a disgruntled heir (like a family member) who takes the documents.

Sometimes, the risk to the documents doesn't relate to them getting lost or destroyed. Rather, the risk is that someone might make changes to them without you knowing.

For example, let's say you prepare a will that gives most of your estate to a charity upon your death instead of a particular family member. Upon learning about your decision, this “disinherited” family member gets upset and decides to change your will without you knowing.

There are many ways this can be done, such as replacing the entire will with a different one and forging the necessary signatures or notary seals.

Another way is to remove and replace just certain pages in the will. There are real cases where the parties have litigated the validity of a will based on the fact that its stapled pages were taken apart and re-stapled back together again.

All of this is to say that protecting your estate planning documents involves more than just keeping them from getting lost or destroyed. You also need to ensure they don't get changed without your knowledge. But how do you go about accomplishing either goal?

How to safely store estate planning documents

There are several options to choose from when storing and protecting your documents. However, there is no foolproof method that will protect against every possible threat or risk. Rather, they each have their own benefits and drawbacks.

It's up to you to decide which approach works best for you. One of the first decisions to make is whether to store them at your home or another location.

Storing estate planning documents at home

This is one of the easiest and most convenient methods. You can keep your documents almost any way you want, but you have to balance the competing interests of making them easily accessible when necessary and protecting them from damage.

On one end of the spectrum, you could put them in a high-end safe, then bury that safe 10 feet underground. But the problem with this approach is that what if you need to make changes to those documents?

Sure you can dig them up, but that would be a time-consuming and expensive job. There's also the added cost of buying the safe. And if your personal representative or lawyer doesn't know where you buried the documents, those vital papers will be useless when needed.

Finally, some documents might need to be readily accessible within a matter of hours, such as an advance health care directive or living will. Even if the hospital knows where you've placed them, it could take days before they get them and carry out your wishes.

On the other end of the spectrum, you could keep your documents in an easy-to-find, accessible yet secure location. But the disadvantage of this approach is that these documents will be readily accessible by anyone walking through your home.

Depending on your decisions and family dynamic, you might not want certain people to know what your estate plan consists of. Then there's the risk of the documents more easily getting lost or damaged when moving things around your home.

So, a more reasonable approach might be to place your documents in a fire and waterproof safe that's located at your home, but in an out-of-place location, like an attic, basement or bedroom closet. But again, this isn't a perfect solution for certain contingencies, such as a flood or tornado where wind or water could take that safe and send it to an unknown location several counties over.

That's assuming the safe can protect the documents inside during the national disaster. This is why some people choose to store their estate planning documents at an off-site location.

Storing estate planning documents outside your home

There are several commonly used locations that don't include your home. First, there's the option of keeping the documents in a safe deposit box at a bank. When it comes to preventing your documents from unauthorized access or physical destruction, this will be one of the safest options to choose from.

Storing documents in safe deposit boxes

Safe deposit boxes are stored in a well-protected vault , but it requires both an authorized safe deposit box owner (such as yourself) as well as a bank employee to access the contents of the safe deposit box. This could create difficulties in the event of an unexpected life event or death.

So what's the catch? One drawback is that you may only be able to access your documents during the bank's business hours. Another major drawback would be if something happens to you, preventing you from accessing your safe deposit box – and you need someone else to gather the documents stored inside.

Unless they're authorized to do so, it will likely require a court order to allow your loved one or representative to gain access to the documents in the safe deposit box should you die or become incapacitated for an extended period of time. And in case you're wondering, yes, your administrator or executor is probably authorized to access your safe deposit box after your death. But their authorization will need to come from the will inside the safe deposit box. So, you'll have a chicken-egg dilemma.

One way around this issue is to add another authorized individual to access your safe deposit box. But this needs to be someone you trust, otherwise you risk someone destroying or changing your estate planning documents without your permission.

Storing documents online

a finger hovering over a digital document

Another option is digital storage. With the ubiquity of the internet and given how affordable digital storage is, deciding to keep your probate and estate documents “on the cloud” seems like a logical choice. Depending on where you live, this isn't a very good option because you may still need to have the original document, like when probating a will.

Another potential concern is the risk from hackers. There's also the risk of loss from a natural disaster or equipment failure, although this is less of a concern given the steps cloud storage companies take to avoid data loss. Then there's the fact that you'll still probably have the original documents with you or your attorney.

OK, so it's clear that there are plusses and minuses for each approach and that no matter what you do, there's always the risk that documents could be lost or destroyed. If this somehow happens, what happens?

What happens if your estate planning documents are lost or destroyed?

What happens if your estate planning documents are lost or destroyed will depend on the applicable law. To answer this question in a manageable way, let's address the question within the context of probating a will.

In many states, a lost will doesn't mean your documented wishes don't exist anymore. Only if that will is revoked do those wishes go away.

How this revocation occurs will vary, but usually a revocation takes place if the will is replaced with an updated version or if you (or someone at your direction) take deliberate steps to destroy or otherwise cancel or nullify the will. For example, drawing an “X” on all the pages, ripping up the will or shredding it are deliberate acts that any reasonable person can conclude to mean you want to invalidate the will.

What does a probate court do if the original will can't be found?

The probate court may accept a copy of the will, such as a reprinted version from the computer of the attorney that prepared it or a photocopy of the original. But before the probate court will do this, they will need evidence that the copy accurately reflects the wishes of the deceased and that the original was properly executed (signed, notarized, etc.).

How this process works will be highly fact dependent and we can examine a hypothetical to illustrate.

Booklet opening animation of our free requestable booklet 25 Common Estate Planning Mistakes

Imagine you have the original copy of your will stored at your attorney's office and photocopies of this original will are kept at your home. The day before you pass away, your attorney's office gets destroyed in a tornado, and your original will is presumed lost. Your surviving spouse submits the copy of your will kept at home to the probate court.

Your spouse and your attorney both explain to the court what happened and that there's no evidence that you had any wishes other than what's contained in the will they're submitting to the court.

For extra support, your attorney submits an email string between you and your attorney where they asked you a few weeks before your death if you wanted to update your will and said you did not. There's also no one objecting to the court accepting a copy of your will (like a disgruntled heir).

In this hypothetical. there's a good chance the probate court will accept the copy of your will and start the probate process. A court will often accept a copy of a will as long as your executor can prove:

  • It's a copy of a properly executed (signed) will.
  • There's no evidence that you intended to make changes to your lost will.
  • There's no evidence to indicate that you wanted the original will destroyed or voided.
  • There's no realistic chance the original will can be found after a diligent search for it.

Remember that every state is different in what evidence they need to meet the above criteria. And what often happens is that a lost original will creates a presumption of no will existing at all.

Then there's the fact that what a probate court judge accepts in one state to overcome this presumption could be different from what a probate court judge in another state accepts.

What happens if the original will is lost and the probate court, for whatever reason, won't accept a copy? In many cases, what happens is that the probate court will proceed with handling your estate as if you never had a will.

Bottom line

Reading this article might not be the most reassuring in that there's no perfect solution to protecting your estate planning documents from every conceivable risk. But if you feel that the above-discussed solutions won't work for you, it's a good idea to talk to your estate planning attorney to express your concerns.

After talking with them, they might know of additional steps you can take to reduce the risk of your wishes not getting carried out as planned.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

Phone - 844.445.3422
Email - info@legacyassuranceplan.com
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