Where Should I Keep My Estate Planning Documents?

You’ve done the right thing.

You’ve gone to an estate planning or elder law attorney and had your basic estate planning documents prepared, including your Last Will and Testament, Financial Power of Attorney, Health Care Power of Attorney, and other important documents.

Now what do you do with these documents?

Last Will and Testament

In Ohio, original Wills are very important. That is because if an original Will is lost, the law presumes that it was lost or destroyed on purpose. To admit a lost Will, the burden is on the individual seeking to admit the lost Will to prove that:

• It was executed in accordance with the law;

• The contents of the Will can be established; and

• There is no evidence that the Will was revoked.

In short, it is a process best avoided by ensuring that your original Will can be located upon your death.

A Will is best kept in a fireproof safe in your home or another secure location. It is important that your loved ones know where it is located and how to access it if needed—for example, how to enter your home and where the key or combination for the safe is kept.

If the Will cannot be located upon your death, it has not served its purpose.

If you do not have loved ones nearby or individuals you trust to safeguard the document, you may wish to consider depositing your original Will with the probate court in the county where you reside. For a nominal fee, the court will store your Will confidentially until your death.

A Will should not be kept in a safety deposit box. If the box is titled solely in your name, no one can access it after your death without authority from the court. Ironically, that authority is often granted through the Will itself. In such circumstances, an administrator may need to be appointed, which can require a bond, additional filings, and added expense. Again, this situation is best avoided.

You may also wish to refrain from distributing copies of your Will to loved ones if there is any chance you may change your mind in the future. A Will can always be changed or revoked, and it is generally best not to have revoked Wills circulating. Old copies can create confusion, promote Will contests, and cause hard feelings if a friend or relative was previously named as a beneficiary or executor and later removed.

A Will does not need to be filed anywhere during your lifetime to be valid. If you own probate assets at the time of your death, the Will must then be filed with the probate court as part of the probate process.

Financial Power of Attorney

Although Ohio law provides that a copy of a Financial Power of Attorney should be treated the same as an original, it is not uncommon for financial institutions to require an original document to be presented at least once before accepting it.

For that reason, ensuring that your original Financial Power of Attorney can be located is important.

If you have complete confidence in the person you are appointing as your agent—and hopefully you do—or if that person is already assisting with your financial affairs, it is often best to provide the original document to the named agent and retain a copy for yourself.

If you are uncomfortable with the agent possessing the document before it becomes necessary, you may keep it in a fireproof safe in your home or another secure location. It is important that your agent knows where it is stored and how to access it if needed. As with a Will, a document that cannot be located when needed does not help anyone.

Another option is to leave the Financial Power of Attorney with a trusted third party for safekeeping until you are unable to manage your financial affairs.

Remember that a Financial Power of Attorney can be changed or revoked at any time. If you choose to revoke or replace it, the new document should be properly executed and provided to your agents and any financial institutions that received the prior document. If financial institutions or former agents are not informed of the change, they may continue relying on the prior document in their possession.

Clients often ask whether a Financial Power of Attorney must be filed or recorded. Generally, it only needs to be recorded if it is being used in connection with a real estate transaction. Otherwise, it does not need to be filed or recorded anywhere.

Health Care Power of Attorney and Living Will

Under Ohio law, copies of Health Care Power of Attorney and Living Will documents are treated the same as originals.

You should provide copies of these documents to your primary care physician. If you are undergoing a procedure—especially within a different healthcare system—you should also provide copies to the healthcare provider in advance of the procedure.

I generally recommend giving a copy of the documents to your primary healthcare agent and, if you wish, to other family members. You may also want to scan the documents and save them to your phone or email account so they can be accessed while traveling if needed.

Like a Last Will and Testament and Financial Power of Attorney, a Health Care Power of Attorney and Living Will can be revoked or modified at any time. If you choose to do so, updated documents should be properly executed, and notice should be given to your agents and healthcare providers who previously received copies.

If you do not have loved ones nearby or individuals you trust, you may also wish to consider depositing your Health Care Power of Attorney and Living Will with the probate court in the county where you reside. For a nominal fee, the court will confidentially store these documents.

Final Thoughts

Creating estate planning documents is only part of the process. Equally important is ensuring that the right people know where the documents are located and can access them when needed. A carefully drafted estate plan cannot accomplish its purpose if critical documents cannot be found.

For more information about estate planning documents, their proper storage, and how they can be used to protect you and your loved ones, contact an experienced Cleveland estate planning attorney.