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.
on both prenuptial and postnuptial agreements. She works as a consultant and mediator
nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative
law, estate planning, probate of estates and trust administration, as well as mediation and, in
Massachusetts, providing counsel for couples entering into prenuptial agreements. Laurie is
one of the initial practitioners and developers of the field of marital mediation, the practice of
using mediation to help couples solve marital problems and improve their marriages. Laurie is a former board member of the Massachusetts Council on Family Mediation and the
Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation,
marital mediation, and prenuptial agreements. You can find her articles on www.ivkdlaw.com,
Huffington Post, and Mediate.com. She is the author of the book “The Generous Prenup: How
to Support Your Marriage and Avoid the Pitfalls,” available on Amazon. Laurie is frequently
called upon by attorneys and mediators to share her expertise, through giving both formal and
informal presentations, on the subject of prenuptial agreements all across the country. You can
contact Laurie at laurie@laurieisrael.com. Her website is www.laurieisrael.com.