Where Should You Keep Your Original Will?
I highly recommend that my clients keep their original Will in their lockbox because the original must be located in order to probate the Will. It is possible to probate a copy of the Will. Generally, you can only probate a copy if no one objects.
If the first person to find your Will does not like its provisions, they might “lose” the Will because they will fare better if you do not have a Will. If the Will is lost, those who would have fared better will find it very difficult to overcome the presumption that the Will was revoked.
The attached case of two stepchildren against their stepfather, Janice Davis Boelter and Richard Davis v Jackie Curtus Reagan et al, demonstrates the problem. The decedent’s will gave her entire estate to her two children, leaving nothing for her husband (who was not the father of her children). After her death, her children were unable to find her Will, which had been executed 16 years prior to her death. The Will may have legitimately been lost. However, it is also possible that her second husband found the original Will and discarded it because he didn’t like its provisions.
Because the children were unable to locate the original Will, the estate was administered as if the decedent did not have a Will. This meant that the husband received a significant share of the Estate.
I have been involved in another case where a Will could not be found. There was a suspicion that the Will had been fraudulently destroyed by a person who had access to the decedent’s records after the decedent had become mentally incapacitated. No one could prove that the Will had been fraudulently destroyed because it is very difficult to prove a negative.
So what should you do with your original Will? Assuming you choose to keep your own original, you should put it in a lockbox and not allow those who would fare poorly under the Will to have access to your lockbox. Some of my clients leave their original Will with a trusted advisor such as a CPA, attorney or banker. In addition to making sure that your original Will is retained in a safe location, you should periodically confirm that your original Will is still where you want it to be.
Another possible solution is to use a funded Revocable Trust as the document that disposes of your assets following your death. An original of your Revocable Trust does not need to be produced for any reason. A copy of the Revocable Trust will suffice to allow your successor Trustee to distribute the assets in the trust, even if the original cannot be located.
The reason for having a Will is to make sure that your assets are distributed in accordance with your wishes. It would be a shame for your plans to be thwarted due to a lost Will.
