There are many different estate planning documents that you may want to consider as part of your estate plan. Those documents include different types of Trusts, Last Wills and Testaments, Powers of Attorney, Health Care Proxies, and Living Wills. You may not know what to do with those documents once you have them. Below are questions and answers that will hopefully shed light on that issue.
Should I have the original of my Last Will and Testament?
Law firms vary in their practice, but most attorneys suggest that they retain your original Last Will and Testament. Attorneys who do estate planning work generally have a Will safe - which is a locked, fireproof filing cabinet, in which they maintain their client’s original Wills.
Why do attorneys retain their clients’ original Wills?
In the hands of your attorney, your original Will is safe from being lost, damaged, or altered – whether deliberately or inadvertently. Regardless of your attorney’s custom, your Will is your property, however, and you can retain it if you wish.
Should I get a copy of my Will?
Absolutely. Attorneys customarily give a photo copy or conformed copy of your Will to you once you have signed it.
Do I need to file a copy or my original Will anywhere?
No – not while you are living. Once you pass away, the attorney for your Executor will file the original Will with the local county Surrogates Court as part of the probate proceeding to get your Executor appointed by the Court. In some cases, Wills can be filed with the Surrogates Court before a probate proceeding for “safekeeping.” This might be done if the attorney who has custody of your Will is not intending to seek probate of the Will, but he or she wants to ensure it is in the safe hands of Court staff.
If I am an Executor for someone who dies, how do I get their Will?
You can obtain the Will from the attorney who has custody of it. If you wish, you can utilize that attorney to probate the Will, but you may also select another attorney if you desire.
Is the practice the same with trusts?
Attorneys vary in how they handle the signing and storage of Trust documents. Some attorneys may only do one original, other attorneys may do duplicate or multiple originals. If more than one original is done, then the attorney will generally give one original to the client and retain another original in storage in their Will safe.
What if a financial institution wants to see my Trust?
If a financial institution or other responsible entity wants to see a copy of your Trust, you can furnish that to them. Another option is to ask your attorney to prepare a Certification of Trust, which is a short synopsis of the key provisions of the Trust. The Certification is signed by the attorney and sets forth the key elements of the Trust, such as the names of the grantor(s) and trustee(s).
If I sign a Power of Attorney, what should I do with it?
If you sign a Power of Attorney, it will also need to be signed by the agents you designate to act on your behalf. Your signature and their signatures need to be notarized. Often attorneys will do two or more originals and give you one and retain one for their records. If more than two originals are done, the attorney may also give them to your agents.
Does my Power of Attorney need to be recorded with the County Clerk?
No, unless it is being used by your agent to sign a deed or other recorded conveyance for you. If you choose to record your Power of Attorney with the County Clerk, it becomes a public document and certified copies are available for a small fee.
What do I do with my Health Care Proxy?
It is a good idea to give a copy of your Health Care Proxy to your primary care physician. In addition, you may want to furnish a copy to any hospital that you are admitted to.
What happens if my attorney retires or moves away?
If your attorney retires or moves away, he or she generally will contact you and offer to return your original estate planning documents. In the event they do not hear back from you, your attorney will likely turn the custody of your original documents over to another local attorney for safekeeping. If you cannot locate your Will or the Will of a loved one, you can always contact the local County Bar Association for assistance.
It is important to work with a qualified estate planning attorney to obtain all the necessary documents to support your estate plan. Hopefully these questions and answers will shed light on what happens to those important documents after they are completed.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his 21 years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at 518-584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and www.oalaw.com.
