If you were to ask attorneys across the country how often they get phone calls like the following, the answer (“Very frequently”) may surprise you. The phone call might go something like this: “Hi, this is John Jones. My dad, Bill Jones, passed away recently and we have torn the house apart looking for his estate planning documents. But despite our best efforts, we can’t find his will or trust anywhere! I know he did an estate plan with your office a few years ago, but we just can’t find original documents. Please tell me that you have a copy of the documents?”
Although some attorneys make it their standard practice to retain and store a client’s original will for safekeeping as a service, that trend is becoming increasingly rare. As more law offices make efforts to “go green” by storing only digital copies of legal documents, they are giving their clients the responsibility of keeping their original documents safe.
So what happens when the bank, title company, or court requests your original legal documents, and no one can find them?
Copy of Your Will
State laws differ on how to handle a missing will. Generally, if a document is lost or has been inadvertently destroyed (such as in a house fire), there are legal avenues for allowing a copy to be used in place of the original.
Texas is one of many states which provides methods for “proving up” a Lost Will or a Copy of a Will. This includes overcoming the presumption that you, the decedent, did not intentionally destroy (revoke) your will. This presumption can be overcome with clear and convincing evidence that while your will might be MIA, you didn’t intentionally destroy it. This evidence might include testimony from the your attorney, friends, or family about statements the you made about the will’s existence or recent changes made to the will with the assistance of an attorney. In other cases, evidence of a recent fire or flood that destroyed the will may be useful to rebut the presumption that the you intended to revoke the will.
In addition, if all interested parties to the will (e.g., heirs) agree that a photocopy of the will is the correct version of the your will, a probate court is more likely to allow the will to be submitted. However, if there are disagreements about whether the photocopy truly represents your will, the copy may ultimately be rejected, and Texas’ intestacy laws will govern how the property in the estate will be distributed among the heirs.
It’s because of situations described above, that your attorney tells you to keep your original will in a safe place, such as a fireproof safe or a safety deposit box, where it will be protected from loss, fire, water damage, or theft. But just as important, you must also ensure that the individuals or entities you put in charge of your affairs after you pass away know the location of your will and can gain access to it when you are gone.
Financial Power of Attorney
A durable financial power of attorney is a legal document that allows you to name someone to act on your behalf in legal and financial matters (an agent) should you become incapacitated (unable to manage your own affairs). Generally, it is best practice for the agent to provide the original signed and notarized document for it to be accepted by a bank. In some states, an accompanying acceptance document must also be signed by the agent, notarized, and presented with the power of attorney document for the power to be valid. Texas, as one of the state which has enacted the Uniform Power of Attorney Act of 2006 typically will allow a digital copy or photocopy of a properly signed power of attorney to be used in place of the original. While Texas may allow a digital copy or photocopy, a best practice is to be sure to keep your original signed power of attorney documents somewhere safe, ensuring that your agent knows the location of your documents, in the event they need to access them.
Because of the nature of trusts and the typically less-strict formalities associated with their creation, it may be easier to rely on a photocopy of a trust when the original cannot be located. Unlike a will, Texas trusts do not go through a public probate and aren’t required to be registered with the court or the county recorder to be legally valid. So if you can get all the trust beneficiaries, including minors as represented by their guardians, to agree that a photocopy of the trust instrument is a true copy of the grantor’s most recently executed trust, that may be sufficient for the trust’s administration to move forward.
The above approach may work when a family tends to be agreeable and there is no controversy surrounding the trust’s administration. However, in certain family situations, there can be conflict, tension, or distrust. In such a case, it is prudent to seek a judicial determination that the photocopy of the trust document is the governing trust document and that it may be used to govern the administration of the trust. A judicial decree that the trustee is acting appropriately in relying on that photocopy for their decisions can significantly assure the trustee that they will not be sued in the future if somebody eventually discovers an original trust document that is different from the court-approved copy.
Medical Powers of Attorney
Copies of medical powers of attorney, living wills, or healthcare directives are almost always as acceptable as an original. Because so many different medical professionals can be involved in the care of a single patient, it becomes impractical for each professional to have to verify that the medical power of attorney is an original whenever the agent must make a decision.
Nevertheless, when differences arise regarding the care of the person who made the medical power of attorney, the original legal document may be required to settle any disputes. If a bona fide dispute arises and individuals or healthcare providers cannot determine whether a copy of a medical power of attorney is the most recent or should be honored, a judge may need to rule on the issue to provide direction to the incapacitated person’s medical providers and loved ones.
Safeguard Your Documents – So You Don’t Need Copies
The bottom line is that, although we are increasingly moving to digital documentation of legal decisions, there is still great value in having the most recent original signed document so that, if there is any question as to the intent of the testator, principal, or grantor, the document can be brought before a decision maker to prove what the intent of that person was. Currently, there is no better way of proving that intent than presenting a signed, witnessed, and notarized original document.
Always keep your originals safe, and let your trusted decision makers know where they are. If you do not want people to go through those documents when you are not around, keep them locked in a safety deposit box, a fireproof safe in your home, or a secure (possibly fire- and water-proof) location, and make sure that somebody other than you knows how to quickly find and access them. You can save your loved ones significant trouble if you make sure that your original documents are safe and accessible when they are needed. Know that, in the worst case scenario where your original documents have been lost or destroyed, you are not completely without options. If you need help finding your documents or discussing next steps after being unable to locate your or your loved one’s documents, call us.
Give Us A Call
Whether you remember where you’ve stored your prior estate plan, or if you’ve never crafted an estate plan before, Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information, and to learn about our firm, please contact us. We look forward to working with you.
Tex. Est. Code § 752.004 (2014).