Where should you keep your estate planning documents?

Clients always ask where they should keep their will and important estate documents. As attorneys habitually do, I usually respond: “It depends.” Is your family emotionally supportive and close, or is there contention? Are you ill? Are you healthy; or under hospice care? There are many variables, and the best method of storage is almost completely based upon common sense. However, here are some general guidelines:

In a Safe Deposit Box: These are good places for wills and trust documents– as long as your family knows about the box and has access to it. If the box is jointly held, your joint holder should be told that the will is in it. However, if only you have a key, then the executor of your will should be informed (1) that the will is in the box, and (2) is told where the key is. An executor may be able to force access to the box after being appointed by the court, but it will require additional effort and expense. When it is possible, planning ahead is better.

With Your Important Papers: Placing the will and trust documents with your important papers is a good option – unless you are concerned about fire, theft or destruction. If you have a contentious family situation (or suspect there may be one), this is probably not a good idea if the person who may contest your estate plan has initial access to these documents. Again, use common sense in making this decision.

In California, if estate planning documents cannot be located, it is presumed that they were destroyed with the intent to revoke. They may be revoked through numerous means – including outright destruction – at any time before death. The assumption that the “lost” will was revoked can be overcome through litigation, but advance planning can avoid the problem. But this should give you no comfort – think about it: You are dead. Yet, the court must decide your actions. How can it be proved that you did not destroy the will with the intent to revoke? This is a difficult, avoidable issue.

This also emphasizes the importance of taking a cold, hard, and honest look at your family situation. You would be amazed at what people are capable of when money is involved. But I believe that most people really, truly know the character of their family members. You really do know what those close to you (or not so close to you, as the case may be) are capable of. Act on your “gut” instincts in deciding how to maintain these records.

With your Attorney: I generally do not retain the originals of estate planning documents (even though I do not discount the possibility that I might make arrangements, in an appropriate, emergency circumstance). If appropriate, this is another possibility – as long as your executor knows where to find the document. As always, the important element is that the important person has knowledge and access to these records.