Safekeeping Estate Planning Documents

By Matthew A. Quick Original estate planning documents are required, if not preferred, in every instance of use, which is why it is important the originals are kept safe, yet readily available. Since each estate planning document may be used at a different time and by different people, the recommended safekeeping of each document differs.

Safekeeping original Wills is exceptionally important. If an original Will is not produced for probate, a copy may be admitted. However, if a copy of a Will is contested during the probate proceeding, the proponent of the copy must prove the contents of the document are accurate and authentic. MCL 700.3407 (Illinois formal proof of Will statute: 755 ILCS 5/6-21. Also see In Re Estate of Koziol, 366 Ill App3d 171 (2006)). If the proponent of the copy is unable to do so, the copy will not be relied upon and probate will proceed as though the contents of the copy of the Will was revoked. Additionally, if the original Will is burned, torn or canceled, regardless of whether the burn, tear or cancellation touches any of the words on the Will, the Will is considered revoked. MCL 700.2507 (Illinois revocation statute: 755 ILCS 5/4-7). To address these issues, the original Will should be kept in a place safe from fire, water and all other elements, to avoid any unintended revocation. Once stored, the location of the original Will, and anything needed to access the location, should be provided to the personal representative and successor personal representative(s).

A few locations are suggested to store an original Will. A safe deposit box or home safe are common options; and Michigan provides the option of depositing the original Will with the Probate Court in the county in which the person who executed the original Will (known as the "Testator" if male or "Testatrix" if female) resides. MCL 700.2515. The process for a Michigan Testator or Testatrix to deposit an original Will involves taking the Will to the respective Probate Court (this can either be done by the Testator or Testatrix, or someone else at their direction) with a Twenty-Five ($25.00) Dollar filing fee. The original Will will be placed in an envelope that is dated and containing the name, address and social security number or driver's license number of the Testator or Testatrix. Upon deposit, a receipt will be given indicating the identifying information of the stored Will. During the lifetime of the Testator or Testatrix, the Will may be retrieved at any time with the receipt, but each time that Will, or another Will, is deposited, the Court will charge an additional Twenty-Five ($25.00) Dollar filing fee. A Will on file with the Court will remain with the Court until the death of the Testator or Testatrix, and will be released to the appropriate Court upon proof of death. Unfortunately, Illinois does not currently provide a Will depository service.

Original Trust Declarations, Powers of Attorney, HIPAA Waivers and any other estate planning documents that may need to be used immediately or require acceptance of their terms by the person nominated, should be kept by those appointed in each document, in the absence of certain, narrow circumstances. A copy of these documents should be provided to the entities that are to rely on them (i.e. Powers of Attorney for Health Care and HIPAA Waivers should be filed with health care providers; Powers of Attorney for Property should be on record with financial institutions). An additional copy of these documents should be kept by the Principal (the person who executed them) in a place that is confidential, yet readily available for quick reference and review.