Question: My wife and I recently signed our wills at our lawyer’s office. After the signing, he gave us the choice of whether to take the originals home with us or to leave them with him and take home copies. We hadn’t really thought about this before nor had we discussed it between ourselves but ultimately decided to leave the originals with our lawyer. Was this the best choice?
Answer:
The answer depends on many factors. It is important to consider what a will is and when you will need it. A will is that document by which you are requesting that a Judge of the Surrogate’s Court appoints your choice of executor to distribute your property in a certain manner after you have passed away. In order for the Judge to honor your wishes, your family must hire an attorney to petition the court and prove that the will is valid. This is the probate process. This means two things. First, the original will is vital for your wishes to be carried out and, second, the original will is not needed until after your death. More specifically, your will has no power or authority until after your death and it is approved by the Court.
With this background, your question may be answered and the following example may be helpful. Recently, the son of a client called me and advised me that his father had passed away and he wished to know if we had his original will which was executed about eight years ago. I had his file pulled and saw a copy of my letter to our client relating that, since he decided to take the original home, he should keep it in a safe but accessible place. I also checked our fire-proof will cabinet and confirmed that we did not, in fact, have the original. Unfortunately, the son could not find the original. His father had even told him, before he died, specifically where it should be but it was not there. What did this mean to the family? In this case, one of the four children who was both estranged from the parents and fairly well-off was disinherited in the will. If the family proceeded to court without a will this disinherited son would get an equal share of the estate thereby defeating the father’s wishes. The alternative would be attempting to proceed to court with a copy of the will, convincing the court that it was a true copy and explaining what happened to the original - no easy task. While we were eventually able to work this out, how simple it would have been had our client left the will with us in the first place.
As you can see, safety and availability upon death are the main concerns. If you decide to take your will home, you must be sure that you have a place where it will be secure from fire and theft but be available to your nominated executor when it is needed. This means that it cannot be in a safe deposit box in a bank where your chosen executor will not be able to get it when you are deceased. Even if he or she has your power of attorney, remember that this power dies with you. A co-owner of the safe deposit box will have access but the number of co-owners is often limited by the bank. Therefore, if your will is kept in your home, you must strike that delicate balance - between safety and accessibility to your executor.
If you are leaning toward leaving it with your attorney, you should ask certain questions: Will the document be stored someplace which is both secure and fire proof? Will there be a fee? (There should be no fee.) What will happen to your will if your lawyer retires or passes away? Can you obtain the will from him if you change your mind?
The last question is key and the answer should always be "yes". For those of you who have already left your will with your lawyer, it may be worth your while to call and find out the answers to all of the above questions to give you peace of mind. For those who are planning to have a will prepared (and everyone should have one), you now know what to ask. Having a will is essential but only if its there when you need it.
