The final step in an estate planning case might be to tell clients to keep their documents in a safe place.
A safe deposit box, they might say. And why not? What is safer than that?
That actually might be the last place the original will should go. And why? Sure, there is the possibility that the formerly alive person might not have told heirs about the box or how to access it, but that is not the reason cited by Lawrence D. Mandelker of Venable LLP.
The New York City-based estate-planning attorney said that would be a good way to lock up the estate for a while.
“Now you've got your son calling up the bank and saying, ‘My mom just died. I need to get into the safe deposit box to get access to the will,’” Mandelker said. “And they’ll say, ‘Wait a minute. Your mother died? We're locking that box. You need a court order.’”
For the family to get the will, they will need a judge to grant access, which is difficult without a will. Persuading the judge is the first hurdle, and that is a low, limited hurdle.
“You have to go to court, and you get a court order that says you're allowed to take the will out – nothing else,” Mandelker said. “You'll typically go in maybe with someone from the bank who stands there. They're not going to look through the rest of the box, but they make sure that you don't take anything else out, that you only take out the will.”
Probate court usually requires an original will, which names an executor. That person is the one legally allowed to do things such as open safe deposit boxes.
So, where should somebody keep a will and other estate planning documents?
“Your attorney probably has a safe deposit box that's fireproof or some type of vault that's fireproof where the documents are protected and they can get them,” Mandelker said.
Find A Balance
But how would a family know what lawyer might have the will? If the dearly departed was a close-to-the-vest type, even close family members might not know who the attorney is.
Clients should have a copy of the will, but there is a bit of balance in where to keep it.
The copy should be fairly easy to locate, but not just lying around.
“I typically tell my clients your copy should be someplace where it won't be seen but it will be found,” Mandelker said. “You're not going to leave it on the dining room table, but you don't want it to be impossible for someone to find. If something happens to you, you want them to be able to go into your house and say, ‘Where would they keep the important papers?’ "
The document will provide the name of the attorney to contact to get the original. But that is not the only document to keep somewhat accessible.
It is important to have advance directives such as power of attorney and healthcare proxy documents handy.
“A will takes effect at your death,” Mandelker said. “These documents take effect if you're incapacitated. You're in the hospital. You're in a coma. No one can make healthcare decisions for you, but someone can get this document and say, ‘This is the person they've authorized to make healthcare decisions.’"
Steven A. Morelli is a contributing editor for InsuranceNewsNet. He has more than 25 years of experience as a reporter and editor for newspapers and magazines. He was also vice president of communications for an insurance agents’ association. Steve can be reached at [email protected]
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