Embarking on the journey of estate planning is a task that often comes with a significant emotional investment. It’s a meticulous process where you, alongside a trusted attorney, make decisions that will impact your loved ones long after you’re gone. But imagine, after careful planning, you pass away peacefully, and your family faces a daunting obstacle: your original will cannot be found. What then?

This very scenario was illuminated by an experience I had recently. A call from a lively, sharp-witted woman, who was diligently contacting estate planning attorneys throughout Washington D.C., painted a vivid picture of this predicament. She was searching for her aunt’s will, unsure of who had helped draft it. It struck me profoundly — the mix of sorrow and administrative chaos that ensues when a document as critical as a will goes missing.

The Consequences of Lost Estate Documents

Let’s explore what happens in such a scenario. If a will or any vital estate planning document is misplaced, the repercussions can be serious. In the absence of an original will, the law presumes the individual has died intestate, meaning without a will. This triggers a default legal process where the state’s intestate succession laws take over the distribution of assets. These laws, often outdated and modeled on a traditional nuclear family structure from the 19th century, might not reflect the decedent’s wishes. Relatives might receive inheritances in proportions that the decedent would never have intended, and non-relatives, no matter how close to the deceased, could be left out entirely.

Starting the Search

When faced with the possibility that a will is lost, the first step is to conduct a detailed, exhaustive search. This involves checking all the places where your loved one might have stored their will or any copies of it. Search through their home, any safe deposit boxes, and contact banks where they held accounts. Sometimes, you might discover a document with a reference to an attorney or CPA who could have a copy of the will. If the initial search comes up empty, expand your efforts. Reach out to any legal or financial advisors the deceased may have consulted. Check with local and state bar associations — they might have records of attorneys who specialize in estate planning. Some attorneys retain copies of the wills they draft, so this can be a critical avenue to explore.

In many cases, if the original will cannot be found and presumed destroyed, the presumption is that the testator revoked it. However, if credible evidence suggests otherwise,
some jurisdictions may accept a copy of a will, under specific circumstances, as a valid testamentary document. Understanding these legal nuances underscores the importance of not only keeping originals safe but also ensuring that copies and records are easily accessible.

Safekeeping Strategies

After a will has been properly executed, there are several strategies to consider for safekeeping:

  • Digital Copies: It is prudent to create digital copies of the will. I recommend storing these copies in a secure digital repository that the client and their designated executors or family members can access.
  • Physical Storage: In addition to digital copies, I provide every client with a durable, burn- and waterproof case for storing their original documents. This case should then be kept in a secure location, such as a home safe or safe deposit box.
  • Informing Key Individuals: It’s essential that key individuals — such as executors, spouses, or adult children — know exactly where to find these documents and how to access them. This information should be clear and precise.
  • Regular Updates and Communication: Estate planning is not a one-time event. Regular updates to your will and communication with your attorney can ensure that the most current version of your documents is available and known to those who need to know.
  • Professional Storage Services: Consider using a professional storage service that specializes in the safekeeping of legal documents. These services often offer secure, climate-controlled facilities and may provide retrieval services as well.

Educating Yourself and Others

Education plays a critical role in this process. Understand the importance of secure document storage and educate your loved ones about the procedures you’ve put in place. Estate planning attorneys can offer valuable insights and resources to help clients and their families prepare for these eventualities.

Final Thoughts

The story of the woman searching for her aunt’s will serves as a stark reminder of the importance of safeguarding our estate plans. It’s a testament to the foresight and consideration we owe to ourselves and our families. By implementing robust safekeeping measures, maintaining open lines of communication with loved ones, and regularly revisiting our estate plans, we can avoid the unnecessary stress and legal complications that come with lost documents. Let this be a call to action: secure your estate planning documents today, for peace of mind tomorrow.