by Laurie Israel, Esq.
Divorce and Estate Planning
Clients frequently ask me where to keep their signed Last Will and Testament. The original Last Will is required for probate. If only a copy can be found, the testator is presumed to have revoked the Last Will and Testament. Asking for a copy of the Will to be allowed will pose a problem, unless all of the heirs at law (those who would receive the estate had the decedent died without a will) assent to the copy.
What if you were to place the original in a safe deposit box at a bank? This is a good solution for many people. However, unless there is a joint signer to the box who possesses (or who can obtain) a key, there will be a problem getting the will out of the box after the testator’s death.
The best way to solve this problem is to have at least two people at all times who can access the box. This works well for married people, but once one spouse has died, the surviving spouse should think about providing joint access to another person so that when the second spouse dies, getting the Last Will is easy.
If you are single (or your spouse has died), have a friend or a relative be able to access the safe deposit box after your death, by having him/her signing as a joint registrant on the box. You need to trust the person you select to have joint access. You may want to think about whether or not to select a relative who would receive an “intestate share” as next of kin if you died without a will, but who will receive nothing if the Last Will in the safe deposit box is probated.
If a friend or relative has died and you suspect that the Last Will is in his/her safe deposit box, you may have a problem. You cannot probate the Last Will until you have it. If you go to the bank, you may be told that you cannot open the box until you are appointed by the court. That creates a “Catch 22”, because you can’t be appointed as executor (where there’s a will) until you have the original Will in your hand.
In a situation like this, some banks have good internal procedures and systems in place to provide access to a Will in a safe deposit box. Some do not. If the safe deposit box does not have a joint holder, you may have to go to Probate Court to get an order to access and search the box.
Other possibilities for keeping your Last Will and Testament safe include keeping it in a fireproof lock box at home or simply having the original documents in a file at home. Make sure your named executor and at least one of your heirs knows where the box and the key to it is located, or where the file at home has been placed.
Copyright ©2010 Laurie Israel.
Laurie Israel is founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is currently on the board of directors of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on mediation to stay married (marital mediation), collaborative practice, marriage, divorce, and pre- and post-nuptial agreements. She is a frequent presenter at professional conferences.