Preserving Estate Planning Documents

Preserving estate planning documents is important to their future implementation. The original documents need to be readily available, altogether and accessible when the time comes.

An original will needs to be preserved and be available to the named executor. In California, the law presumes that if the decedent’s original will was last in the decedent’s possession but is now lost that the will was revoked by the decedent. This is because a will can be revoked by the testator simply destroying the will (e.g., tearing it up). Thus, a copy of a will is a mere photocopy. That said, a photocopy of a will can still be used to prove the will’s content when attached to a petition to probate a lost will; if the petitioner believes that the original was simply lost but not destroyed.

While an original trust should be preserved, a copy is nonetheless sufficient for its administration. Typically, all estate planning documents are kept together in the one binder, which is kept in a safe location, like a bank safe. Also, knowledge of the documents location and the access protocols should be given to persons who will need them. If a bank safe is used the account associated with the safe should be titled in the name of the trust.

It is important to keep an original power of attorney Unless the power of attorney itself says that a copy may be relied upon the same as the original, a person or a business may refuse to accept (honor) the copy and insist on seeing the original or a certified copy of the original power of attorney. Obtaining a certified copy of a power of attorney, itself requires presenting the original power of attorney document either to a licensed attorney or a notary public for certification. The power of attorney is usually kept in the same binder as the will and trust.

Fortunately, copies of advanced health care directives and HIPAA releases (which allow confidential medical information to be disclosed) are treated the same as originals. That said, a copy of one’s health care directive and HIPAA release should be given to one’s health care provider and to any hospital at time of admission. The original should be kept with one’s power of attorney.

If a deed (such as a trust transfer deed) was recorded with the county recorder’s office, a copy of the recorded deed can be obtained from the county. The original recorded deed (once returned by the recorder’s office) is typically kept, along with other asset title documents (e.g., an assignment to one’s trust), in the estate planning binder.

Having one’s affairs in order gives one peace of mind. Keeping one’s estate planning documents altogether in a single binder, stored in a safe location and known to and accessible when needed is usually the best approach. Keeping electronic back-up copies of the original documents in a separate location should also be seriously considered and used if appropriate. The foregoing discussion is not legal advice. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif.