Estate planning attorneys are often asked where original estate planning documents – wills, trusts, powers of attorney, and healthcare directives – should be stored for safekeeping. While there is no right or wrong answer to this question, consider the following:
1. Should you store your original estate planning documents in your safe deposit box? Many people may believe that the best place to store their original estate planning documents is in their safe deposit box at the local bank. This may make sense if you have given your spouse or a trusted child, other family member, or friend access to your box. However, since a safe deposit box is a rental arrangement (you are leasing the box from the bank), if you are the only one who signed the lease and you become incapacitated or die, no one else will be able to open your box. Usually the only way for someone else to gain access to your box if you become incapacitated or die is to obtain a court order, which wastes time and money. If you are not comfortable giving someone else immediate access to your box, many banks will allow you to add your revocable living trust as an additional lessee, which will give your successor trustee access to your box if for any reason you can no longer serve as trustee of your trust. However, if your trust is in the safety deposit box it’s difficult to verify to the bank that you are named as the successor trustee.
The applicable statute in Arizona is Title 6-1008. “Procedure on death of lessee
In the event only one lessee is named in the lease of a repository and the lessee dies, or on the death of last surviving lessee under a tenancy in two or more names, the repository may be opened by two employees of the lessor in the presence of any person who presents himself and claims to be interested in the contents. The employees may remove any document which appears to be of a testamentary nature and deliver it to any person named in the document as executor or to a clerk of the superior court. The employees may also remove any policies insuring the life of the deceased lessee and deliver them to the beneficiaries named in the policies. All other contents of the repository shall be retained by the lessor and shall be delivered only to the person legally entitled to them.”
Note that if the documents are in the safety deposit box it cannot be shown who should have access until you are able to get the bank to open the box and give you the documents — however, they may give the documents to the superior court and that is a whole different process.
Frankly, since there are no reports of burglars breaking into homes to steal estate planning documents I recommend placing your estate planning documents out of plain sight, but easily found, somewhere in your bedroom — perhaps on the shelf in your closet.
2. Should you store your original estate planning documents in your home safe? Home safes are popular these days. Make sure someone you trust has the combination to your safe or will easily gain access to the combination if you become incapacitated or die. But, do you really want to give someone access to you home safe?
3. Should you ask your estate planning attorney to store your original estate planning documents? Traditionally, many estate planning attorneys offered to hold their clients’ original estate planning documents for safekeeping (usually without charging a fee). Today most don’t want to take on the liability. In addition, as the years go by, it may become difficult for family members to track down your attorney, who could change firms, become incapacitated, or die.
4. Should you ask your corporate trustee, if you use a corporate trustee, to store your original estate planning documents? If you have named a bank or trust company as your executor or successor trustee, this may be a good place to store your original estate planning documents. This is because banks and trust companies have specific procedures in place to insure that your original estate planning documents are stored in a safe and secure area. If you choose this option, make sure one or more of your family members know where your original documents are located. Also, keep your health care handy somewhere you can reach them if you have to rush to a hospital in the middle of the night. If they are held by a corporate trustee they will not be available if needed in an emergency.
Regardless of where you decide to store your original estate planning documents, make sure your family members, a trusted friend or advisor, or your estate planning attorney know where to find them. Otherwise, if your original documents can’t be easily located, then it may be legally presumed that you no longer liked what they said and purposefully destroyed them.