The Good, The Bad, and The Ugly:
Five Options for Storing Your Will
At some point in the planning process, we are inevitably asked the question, "Where should I store my estate plan?" Our answer may surprise you! Below, we consider the most common options.
THE GOOD
At Home: People often don't realize that one of the best options is the simplest option: keep the Will at home. This does not mean shoving it in a drawer or using it as emergency kitty litter. It means storing it in a safe, secure location like a fireproof and waterproof lock box. If you do not have a lock box, consider storing your plan in a heavy-duty freezer bag in a deep freezer (no joke!). The rationale behind this is that a deep freezer (or even your refrigerator) can survive a whole host of catastrophes, including most natural disasters.
The benefits of storing your Will at home is that you have easy access to it. If you need a codicil to your Will or want to amend you trust, or even if you replace your documents with an entirely new version, having your plan nearby makes it easy for you to discard the old, out-of-date version. Also, you want the Executor of your estate to be able to access your plan without too much trouble. This, again, makes storing it at home the best option.
There are downsides to storing your original Will at home though. One problem is that "easy access" can also make it easy for the wrong person to get his or her hands on it. Your Will could mysteriously become lost or accidentally shredded or conveniently used for kindling. Also, short of installing a panic room or bank-grade vault in your house, keeping the Will at home makes it easily removable from the house. For example, if someone breaks into your home, your lock box could get stolen, and with it, your original Will. If you store it in a gun safe or something that has a combination lock on it, will your Executor know the combination?
Despite the risks, however, our advice is to store your hard copy originals at home!
In the Cloud: Depending on your age, the "cloud" either fascinates you or terrifies you. If you fall in the "terrifies me" category, you should know that, as time goes by and encryption and safeguards improve, the cloud should not be so scary.
To be clear, though, we are only referring to storing a digital version of your estate planning documents in the cloud. North Carolina does not recognize digital or electronic Wills. There are a few states that do, but we are not one of them...yet. The North Carolina State Bar has a committee investigating the practicalities of implementing an electronic will law, but these committees move at a snail's pace. It will likely be a while before electronic wills gain approval. So, for now, the hard copy originals are still the gold standard for estate planning and administration purposes.
The reason we advocate for cloud storage is that it takes more effort to access than a file simply stored on your desktop, laptop, or tablet. The cloud would be better than saving a copy on your unprotected home computer where anyone - particularly someone who believes they stand to gain something or someone who would be surprised to find they were excluded - can find it. Just don't let the digital version be the only version. Do not be tempted to discard the original signed document thinking that the digital version of the original is just as good. It isn't!
THE BAD
With your Attorney: This was once a very popular option, and some older practitioners may still prefer to hold on to their clients' wills. There is a certain allure to this option from a safety perspective. If the original is in your attorney's possession, then anyone who might have an incentive to dispose of your Will before it can be presented for probate (such as someone who knows or suspects they have been disinherited by the Will) would not have access to it.
Still, times have changed. The world is much more mobile than ever before. People do not stay in one town, one state, or sometimes even one country for the entirety of their lives any longer. And that's what makes this a bad option.
Privette Legacy Planning does not keep original documents after the engagement is concluded. We keep a digital copy of the executed documents, but no originals. The reason for this is simple: liability. If something tragic happens to Amy or if Privette Legacy Planning closes its doors, then someone has to track down all of the clients who left originals with us so that the originals can be returned to them. In an increasingly mobile society, tracking down past clients, heirs, or family members could consume hours of time, and there's no guarantee of success. We get Christmas cards returned each and every year because clients move and forget to update us with a new address. A returned estate plan is a lot more serious than a returned Christmas card!
Liability is also an issue in the event there's a fire or flood at our office or, God forbid, someone breaks in and *poof* there goes the clients' documents. You are probably thinking "but my home could flood or burn down or be broken into too." That's why storage in the cloud is listed above as a good option. It provides a redundancy. It is also why we keep a digital copy as well.
At the Bank: If your first reaction is to put your Will in your safe deposit box at the bank, then you are not alone. Yet, we consider this a bad option. The only upside to this is that it is safe. However, safety is actually it's downside. Storing your Will or other estate plan documents at the bank may actually be too safe.
For example, if you're being rushed to the hospital with a medical emergency, there's no time to stop by the bank and grab your Health Care Power of Attorney or Living Will. If we need access to your documents on a weekend or bank holiday or just 8:00 at night, that's just too bad.
If your estate plan is in a safe deposit box at the bank, then it is so safe that no one can get to it without court intervention. If your Executor is not on the bank card of people allowed to open the safe deposit box, then arrangements must be made with the Clerk of Court to have a court representative present when the box is opened. It's worth noting that attorneys in other counties across our state report that the Clerk in their county requires the presence of a court representative at every safe deposit box opening, even if the Executor is named on the bank card.
If you have to wait for a court representative to be present, then it's fair to say that you will be waiting a while. It is almost a certainty that the representative will not be available as quickly as you would like. The court representative is in charge of making an inventory of all of the contents of the box and noting whether a Will was located or not. The court representative also has the authority to remove the contents of the box and take them with him or her back to the court. AND, your estate has to pay the Clerk of Court a fee for this "service." You may also have to pay the bank for drilling open the box.
Aside from the financial costs, storing the Will at the bank will result in significant time costs. A delay in getting access to the Will is a delay in starting the probate process, which delays your heirs getting their inheritance.
Many estate plans contain memorial instructions or preferences as to cremation or traditional burial. But, if those instructions are locked away at the bank, you may be dead and buried before anyone realizes that was not what you wanted.
Clients of Privette Legacy Planning receive a digital copy of the executed estate plan on a USB flash drive on the day of the signing. If you are going to store anything at the bank, store the flash drive (after you've uploaded the contents to the cloud). The ability to use the safe deposit box for the flash drive is the reason "at the bank" is considered a bad option and not an ugly option.
THE UGLY
At the Courthouse: Some states have a robust, well-established system for recording Wills at the courthouse. North Carolina is not one of those states. While we do allow citizens to "deposit" their original will at the courthouse, there are some frightful stories told about the lack of organization or accountability at the courthouse and the difficulty locating a person's original Will when needed. It is our understanding that there is no real filing system at the courthouse (at least not in Wake County) for these Wills. There is no scanning, no labelling, no computerized registry, no good organizational system. A Will that is deposited for safe-keeping (Ha!) gets put in a room along with all other Wills, and there they all sit until someone comes looking and unearths the desired document from the dusty piles.
If you do surrender your original Will to the courthouse, you will be issued a paper receipt. But heaven help you if you lose that receipt at any time over the next 40 years of your life. And what if you move to a different state or a different county? When you die, your loved ones may not even know that your Will is recorded with the courthouse in the county you lived in a decade ago.
In short, we cannot think of anyone we dislike enough to suggest they trust the security, safety, and protection of their estate plan to the court.
So there it is -- the Good, the Bad, and the Ugly. In truth, though, there is no magic pill. No "one size fits all" solution. You have to decide what works best for you and your family. All of these options have pros and cons. But, whatever you do, be sure and do these three things:
(1) tell the person named in the document where the Will, Trust, or full estate plan is stored;
(2) remember yourself where it is so you can replace old versions with new ones; and
(3) tell us where you keep your documents, and we'll add a note in your file with the location.
