Do I need the original estate planning documents?

DO I NEED THE ORIGINAL ESTATE PLANNING DOCUMENTS?

Often people come to our law firm after a loved one has died and say, “I don’t have the original Will, but I have a copy. Will that suffice?” Make no mistake; it is beneficial and preferred to keep the original estate planning documents. This article discusses what happens in Arizona if someone only has a copy of an estate planning document and not the original.

HAVING A COPY VS . HAVING THE ORIGINAL ESTATE PLANNING DOCUMENTS

The impact of having a copy vs. the original of the estate planning documents differs depending on which document is at issue. For example, if an original Living Trust document cannot be located, a copy of the Living Trust should suffice for all purposes. Likewise, if an original Power of Attorney (medical or financial) cannot be found, a copy should also suffice for all purposes. However, if an original Last Will and Testament (“Will”) cannot be located, additional steps must be taken to proceed. Arizona law (A.R.S. § 14-3415) provides that if a Will was last seen in the possession of the Testator (the deceased person), and now cannot be found, there is a presumption that the Testator desired to revoke, or cancel, the Will. For a copy of the Will to have the same effect as the original, evidence must presented in court to show that the Will was accidentally lost or destroyed. If a Will is otherwise valid and unrevoked but the original cannot be found, the contents of the Will must be proven by submitting a copy of the Will and the testimony of at least one credible witness who indicates that the copy is a true copy of the original.

HOW CAN I ASSURE MY ORIGINAL WILL IS FOUND?

While it may be possible to overcome the presumption that a lost will if a revoked will, it is always best practice to keep your original Will in a safe place and to make sure that your designated Personal Representative knows where to find it when you pass away.

1. Do not store your original will in a safe-deposit box. While a safe-deposit box surely is a safe place it may be difficult for your Personal Representative to access the contents without the original Will, as banks may not allow your Personal Representative access until he or she is officially appointed by the court (a catch-22 scenario because it is more difficult in many cases to be appointed as Personal Representative without the original Will).
2. Do not give your original Will to your attorney. Many attorneys today decline store original Wills. The reality is that if an attorney leaves the law firm, retires, or dies, their successor may not know to contact you to give you opportunity to retrieve your original Will.
3. Consider storing the original Will in a fireproof safe in your home. Many people opt to store their original Will in a fireproof safe in their home. The advantage is that the Will is easily accessible if you ever want to update it, change it, or revoke it.
4. Consider giving your Personal Representative (Executor) your original Will. Some people chose to let their Personal Representative maintain possession of the original Will. While it may seem odd to allow someone else to hold onto an original Will, it may be the most convenient alternative since your Personal Representative will be the one to probate the Will when you pass. If you update your Will, you can provide the new originals to your Personal Representative. If your updates include designation of a different Personal Representative, make sure to give the previous Personal Representative written notice that the Will in their possession is no longer valid and has been updated.

There is no “one size fits all” answer to where you should store your Will, but whichever option you choose, you should ensure that you and your Personal Representative each have a digital copy of your Will as well as the drafting attorney’s business card.

WHAT IF I CANNOT FIND THE ORIGINAL?

If you are named as a Personal Representative or beneficiary and you cannot find the original Will, contact an experienced probate attorney. The attorney can assist you by exploring your options to meet your objectives. People who try to navigate the probate world alone, especially without an original Will, often find more difficulties than they bargained for. The experienced estate planning and probate attorneys at Donaldson Stewart, P.C. are here to help.