Once our clients have finished executing (signing) their estate planning documents, the first question most ask is what to do with them. This is a more important question than many imagine. The short answer is to keep your will and other estate planning documents in a safe place that is easy to access.

It is common for people to execute their documents and then tuck them away in a safe deposit box. Keeping wills and trusts in a safe deposit box is often a good idea but occasionally safe deposit boxes can be difficult to access. When the testator of a will has passed away, for instance, a court order may be required to access the box even by someone who possesses a key. A possible solution would be to keep the safe deposit box in the name of the trust so the successor trustee would have access upon becoming trustee.  Sometimes it will suffice to show a death certificate, a copy of the will or trust, and identification.

Almost as common, many people hide their estate planning documents in books or other unexpected places. What happens when the books get sold at a yard sale or donated to a library? If no one can find your will or trust then how will others carry out your carefully considered wishes? Although your estate plan may be private, it may be counterproductive to regard it as you might a national secret requiring a high level security clearance.

Another common problem arises when estate planning clients make copies of their estate plan and give the copies to others for safe keeping. Courts almost always require original documents. We have seen people grow upset when the originals have been lost and courts cannot accept the copies. Inform your executor or your successor trustee or your agent how to locate and access your original estate planning documents but please reconsider the wisdom of allowing multiple copies to circulate. We can no longer recall the source and it may be an apocryphal story but apparently a judge who was asked to admit a copy of a will to probate explained why he could not stating, “a copy of a will is no more a will than a copy of a one hundred dollar bill is one hundred dollars.”

Powers of attorney present a special problem. Powers of attorney for health care and for property name an agent to act on behalf of a principal (the person who executed the documents) when the principal becomes either temporarily or permanently unable to make important decisions. The power of attorney for health care can even address enormously important end-of-life decisions but to be effective the document must typically be presented to the hospital or the treating physician. Please take extra care to ensure your powers of attorney are easily accessible and consider bringing them with you when you are scheduled for a potentially risky medical procedure.  Because powers of attorney can be needed with some frequency, we often encourage clients to keep their POAs accessible at home.

We believe it is wise to let your executor, your successor trustees, and your POA agents know how to find your estate plan. If you want to keep it private then you might consider keeping your estate plan in a home safe or a locked desk drawer. Some lawyers are willing to store clients’ wills but Schmidt & Lerner, LLC believes this can eventually create additional problems for clients, their families, and even attorneys. In some states probate courts are apparently willing to store wills in advance. Here in Illinois, however, courts are not currently willing or able to perform this service. Although it is not widely known, the Illinois Secretary of State will perform a similar service but only under certain conditions. When an attorney in Illinois possesses a will and is unable to locate the testator after a diligent search, the attorney may deposit the will in an archive of sorts with the Illinois Secretary of State. Other conditions apply and as the law currently stands the attorney must deposit the will in person and only in Springfield. For further details, consult the Secretary of State Act at 15 ILCS 305/5.15.