Where to Keep Your Will

Clients always ask where they should keep their estate planning documents. I often joke that they should place their estate planning binder on the mantle under a spotlight and warn the kids about being cut out! Seriously though, the proper storage of your estate plan is critical. Your estate plan is of no use if it cannot be located or it is destroyed. How you store your documents should be based upon the likelyhood of someone destroying the documents because they are upset with the plan. Here are some of the options based upon the risk of destruction.

On Deposit with the County Clerk. This is the gold standard when it comes to storage of a Will. The Texas Estates Code provides that a testator (a person who drafts a will) can deposit his or her will with the county clerk for safekeeping. The process is as follows:

• Make a copy of your will and place it in your estate planning binder.
• Take your original will to your county clerk's office and ask for the probate division.
• The clerk will give you an envelope where you provide contact information for you and the executors named in the will.
• The clerk will seal the will in an envelope and place it in their will vault.
• The clerk will give you a receipt showing that the will was deposited with the clerk.
• Place this receipt in your estate planning binder attached to the copy of your will so your executor knows that the original will is on deposit with the county.
• The clerk will hold the will until you request its return or you die and your executor wants to probate it.

The fee for this service is usually nominal, approximately $10. This is the best option if you suspect someone may want to subvert your wishes by hiding or destroying the will.

Can the Duran Firm deposit your will for you with the county clerk? Not usually, but it depends. Some counties will let the drafting attorney deposit the will. Others insist that the testator personally deposit his or her own will with the clerk. If you are interested in this service, please ask Michael after your will execution ceremony and we will contact your county clerk to determine the policy in your particular county.

Safe Deposit Box. This can be a good option when you want to secure your will, but it takes planning. In order to enter the box, your executor will need a key. Furthermore, you will also have to take your executor to the bank and add him or her to the signature card as an authorized entrant to the box. This option prevents someone from entering your home and taking your will while you are on your deathbed. NOTE: You should not place your powers of attorney or advance directive (your living will) in the safe deposit box as these documents are often needed in the event of an emergency.

With Your Primary or Altenrate Fiduciary. If you entrust your fiduciaries with your estate, then you should also be able to trust your fiduciary to safeguard your documents. If you choose to do this, we recommend that you seal your documents in an envelope and that you sign your name across the seal. Deliver the documents to your fiduciary and tell him or her that the envelope contains your estate plan and that they should place the documents in a place where they will not be lost. Tell your fiduciary that you are giving them the documents because they are named as an executor or agent in the documents. Tell them that they should open the envelope only in the event you become incapacitated or die. Finally, tell them that you may ask for the documents back. NOTE: If your want to change your fiduciary or your fiduciary dies, you should immediately contact your fiduciary or their family and attempt to retreive your documents.

At Home. Most married couples choose to store their documents at home. This is a good option if: 1) neither one of the spouses have children outside of the marriage; and 2) the spouses are leaving all of their property to one another and then to their chidren in equal shares. If you choose to keep your documents at home, place them in a place that is accessible, but not out in the open. Most people choose their home office desk or a fireproof safe. Don't forget to give someone the combination.

With your Lawyer. Nope. The Duran Firm does not offer this service. I believe that most lawyers offer to safeguard the will so they can be the first stop on the probate express. Having probated thousands of wills, we have come across several situations where the lawyer retired, died, left the firm, etc., and obtaining the original will was difficult or impossible. We think the client should maintain control over their own will without have to keep tabs on their lawyer. Michael wants to retire someday and does not want to keep tabs on all of his clients!

Should I make and distribute copies? That is a personal choice dependent upon how your family would feel about the choices made in the Will. For many people, the distribution called for in their will matches what would happen in the absence of the will. Everything goes to the spouse and then the children in equal shares. No surprise there for most unblended families. Hurt feelings may arise, however, over the order of the fiduciaries called for in your will and powers of attorney. One child may be hurt by not being first in line. You know your family best and therefore, you are in the best position to decide whether it is advisable to make copies.