An original will is a powerful legal document: It is almost always required to start a Probate proceeding, meaning that several estate plans could be confounded in its absence. This makes a will a very important document.
The cynic in me gets extremely perturbed when I see an attorney presume possession of his client’s original will. This attorney is forcing the family to come back to him when the decedent dies, thereby getting a “second bite of the apple” by being in the best position to do the Probate. I have heard of 70 year old attorneys holding onto a 30 year old client’s original will, then the dying or going out of business before reuniting his client and the original will. In other circumstances the family of the decedent wants to work with another attorney to do the Probate, and the attorney holding onto the will makes it extremely difficult to get the original will.
Here are some tips on when to hold onto your own will, and when to trust it to your attorney:
- YOUNG CLIENTS: Hold onto the original. Your attorney will either die before you, change firms, or retire before you die. You may also change attorneys prior to needing your will.
- MARRIED INDIVIDUALS: Hold onto your will. If you think you or your spouse will misplace it, let your attorney hold onto it.
- SINGLE PEOPLE WITH CHILDREN WHO ARE EQUAL BENEFICIARIES: If the will leaves everything to all children equally, then leaving the will with one of the children makes good sense. The absence of the will shall lead to the same distributive pattern, so there is no harm here.
- SINGLE, AGING INDIVIDUALS: Have your attorney hold onto your will. This is a safter bet as you don’t have a natural “back up” individual living with you who knows where all of your paperwork is and can easily find it in the event that something happens.
- SINGLE INDIVIDUALS WITH VERY CLOSE FRIENDS: In this case, have your friend hold onto your will, particularly if they are younger and healthier than you.
PEOPLE WITH WILLS THAT DISPOSSESS FAMILY MEMBERS: Leave the will with your attorney. This avoids the dispossessed individual(s) from absconding with funds you do not want them to have.
Like so many matters in estate planning, these circumstances will differ person to person. So don’t just assume your attorney should hold onto your original will: Any attorney who insists on doing this without telling you why is likely being shortsighted.
Q FOR U: Have you ever left a will with your attorney, then not spoken to them for several years?
