With fires destroying homes and their contents it begs the question, what happens if a person’s estate planning documents go up in flames? How important is it to preserve the original documents? Where should these documents be kept?
A decedent’s original will is required to commence probate. Without the original it may be difficult to impossible to probate the decedent’s estate according to the terms of the missing will. When the terms of a missing will can be established, such as through a copy or a duplicate original, then one may try to probate the will that was lost in a fire. However, there is a presumption that if the original was last in the possession of a deceased testator who was competent until the time of death that the missing was revoked by the testator.
Preserving an original will is, therefore, very important. Keeping the original in a bank safe deposit box is a good approach, provided someone has a key to the box or is named as a co-owner or co-signatory. With a key to the decedent’s bank deposit box and the decedent’s death certificate, the key holder, upon identification, can access the safe deposit and take possession of any original will.
When the original will is retrieved, a copy of the will must be left in the safe deposit box (along with the rest of the contents), the original will must be lodged with the superior court in the county where the decedent resided at death. A copy must be mailed to the person named in the will as executor. California law requires this all to occur within 30 days of the decedent’s death and your Lake County wills attorney will know this.
Unlike a will, a decedent’s original trust document (with amendments) is neither required to be recorded with any county nor required to be submitted to the court where the decedent resided at death. Nonetheless, it is still best to safeguard the original trust. Normally, a trust and will are kept together. The same applies to any original Trustee Affidavits and Trustee Resignations documents.
The original Power of Attorney to manage property, financial, and legal affairs must be maintained. The original is required to be presented at the proper county recorder’s office if the Agent seeks to transfer real property using the Power of Attorney. Other recipients may accept a certified copy of the original, but that process still requires presenting the original document to a notary public or a licensed attorney for copying and certification.
Except for the county recorder’s office, the necessity to always present the original power of attorney can be greatly reduced by the power of attorney providing that an unverified photocopy is as good as the original.
If the Power of Attorney provides that it is immediately effective when signed, the original document should be kept safe against abuse until such time as its proper use is needed. Some people keep the original Power of Attorney with a trusted person other than the agent with instructions that Custodian to provide the Agent with the Power of Attorney in the event of their incapacity.
The Advance Health Care Directive is different. A photocopy is as good as the original!
Originals to any real property deeds that have been recorded with the county recorder’s office can be replaced by a copy of the recorded deed from the county recorder’s office.
Original bank and brokerage account statements if lost can be replaced by certified copies from the relevant institution.
Attorneys usually give the original documents to their client for safekeeping. Keeping original documents is a significant responsibility. Clients must keep original legal documents in a safe place, preferably a safe deposit box, and provide access to necessary persons. Electronic copies can be used as a backup should originals be destroyed.
“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”