When the topic of estate planning comes up, the focus is usually on the need to create a plan, not on what to do with the plan once you have created it. It can, however, be equally important to safeguard your estate plan documents to ensure that they work as intended. An Oklahoma City estate planning attorney at Parman & Easterday explains how to keep your estate plan safe.
What’s In Your Plan?
The estate plan you create should be as unique and individual as you are. Nevertheless, there are some common components, strategies, and documents that are frequently found in an estate plan, including:
- Last Will and Testament
- Trust agreement – financial and health care
- Power of attorney
- Life insurance policy
- Advance directive
In many cases, an original copy (meaning one with an original signature in ink) of the document in question is required in order for the document to work as intended. For this reason, your estate planning documents should be kept together in a safe place. Understandably, the first place many people think to store their estate planning documents is in their existing safety deposit box. After all, that’s probably where you keep valuable jewelry, deeds to property, stocks and bonds, and other valuables. At first glance, it makes perfect sense to put your estate planning documents in your safety deposit box as well. On closer inspection, however, your safety deposit box is not the best place for your estate planning documents.
Is Your Safety Deposit Box Really Safe?
To understand why putting your estate planning documents in your safety deposit box may not be the best choice, you need to understand some probate basics. Shortly after your death, your estate may need to go through the legal process known as “probate.” Probate serves numerous purposes, including:
- Identifying and securing your assets
- Authenticating your Will
- Paying debts of the estate
- Litigating any claims against the estate
- Paying estate taxes
- Distributing assets to beneficiaries and/or heirs
When you executed a Will you appointed someone to be the Personal Representative of your estate. We more commonly refer to that persona as your your Executor or Executrix. That person is responsible for overseeing the probate process. To perform that job, your appointed Executor must initiate the probate process with the appropriate court and petition the court to officially appoint your Executor. If the court approves the person you designated as the Executor in your Will, the court will issue Letters Testamentary which provide proof that the Executor has been appointed by the court and therefore has the authority to act on behalf of the estate.
The problem is that in order to initiate the probate process and complete the appointment or your Executor, an original copy of your Will must be submitted to the court. If your Will is in your safety deposit box, the bank won’t allow access to the box without proof that the individual seeking access is the Executor of your estate. This becomes a “chicken and egg” problem. Your chosen Executor cannot secure the necessary Letters Testamentary to act as your Executor without your Will – but he/she cannot access your Will without the Letters Testamentary.
Similar problems can crop up with other estate planning documents as well. For example, an Agent with your Power of Attorney may have the legal authority necessary to access your safety deposit box; however, if the POA document granting your Agent that authority is in the box, your Agent has no way to prove that he/she is your Agent.
Where Should I Put My Estate Planning Documents?
Now that you understand why your safety deposit box may not be the best place to keep your estate planning documents, the question becomes “where should I keep them?” First, it is always a good idea to execute more than one original copy of important documents. Ask your estate planning attorney to keep one set of original documents. Also give an original copy to anyone named to a fiduciary position within your plan. Your Executor should get an original copy of your Will. A Trustee should have an original copy of a trust agreement and an Agent needs an original copy of a Power of Attorney. Finally, an original set of documents should be kept at home in a fireproof safe and/or given to a trusted family member.
Contact an Oklahoma City Estate Planning Attorney
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about estate planning, contact an experienced Oklahoma City estate planning attorney at Parman & Easterday by calling 405-843-6100 or 913-385-9400 to schedule your appointment today.
Because estate planning is so individualized, it is impossible to say which document is the most important one for everyone. For most people, however, a Last Will and Testament or a trust serves as the foundation of their plan.
It is tempting to simply appoint a spouse, adult child, or other family member as your Executor. Before doing that, ask yourself the following questions:
• Will he/she be able to handle the job while grieving?
• Does he/she have the financial/legal skills necessary to administer your estate?
• Does he/she have the time needed to oversee the probate process?
Yes – but it rarely happens. A judge must officially appoint your Executor; however, they will typically appoint the person you appointed in your Will unless there is a good reason not to (such as the person is not an adult or has a history of mismanaging estate assets.
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