With the after effects of Hurricanes Harvey and Irma, plus a warming earth, safe estate planning document storage should be a concern for many. When you have to evacuate, what is most important to bring? Do you need your original documents? What if your originals were lost or destroyed during a natural disaster? I want to answer some of these common questions and concerns. Importantly, every situation is different, so please make sure you get good advice from your attorney if you are unsure of your situation:
What estate planning documents should I have?
Your estate plan would not be complete without both your death planning (i.e., last will and testament and/or revocable living trust) and your incapacity planning (i.e., your durable power of attorney, designation of healthcare surrogate, and living will). These 4 documents are the key to effectively planning for your death or your incapacity. You can learn more about the four estate planning documents everyone should have here.
Where should I store my original estate planning documents?
You should store your original estate planning documents in a safe place, such as in a waterproof/fireproof safe or in your safe deposit box in your bank. If you do not have such a place, you may want to bring your original documents with you if you have to flee your home. Your attorney typically keeps a copy of signed documents if you ever need an extra copy. Our office scans in the original documents as well, so you can always get a copy e-mailed to you if ever needed.
Should I bring these documents with me in the event of my evacuation?
You may want to bring your original documents if you do not have a safe and are afraid that your home may sustain substantial damage or flooding. The original documents may be more important than having copies as will be discussed further below.
Is a safe deposit box at a bank a good storage space?
If you want your original documents in your safe deposit box, this is a good idea IF you have added someone else as a co-signer on your account. If you own the account in your own name and you did not add a co-signer, upon your death your family will have to go to court to get access to the safe deposit box!
Are some original estate planning documents more important than others?
Yes. We generally would categorize the original documents as follows:
- Revocable Living Trust - the original trust is very important, but if your heirs could not locate the original, a copy of the signed document would likely suffice in most situations.
Last Will and Testament - having your original will is also very important, but if the original is lost or destroyed, it may or may not be that important, depending on the situation.
- Durable Power of Attorney - having the original of this document is most important if your attorney-in-fact must sell real estate on your behalf. If you lose your power of attorney and your agent must sell your real property (i.e., your land), then the original power of attorney must be recorded in the county of sale. If there is no original to be found, the property could not be sold with the original power of attorney.
- Designation of Health Care Surrogate and Living Will - copies of these documents are fine, so saving the originals are not necessarily important.
How effective are scanned copies?
We have a number of possible reasons that original documents are necessary, so each situation will vary. During your lifetime, banks may sometimes want to see an original revocable trust or an original power of attorney, if you become incapacitated. Upon your death, the original last will and testament is likely very, very important, depending on your heirs.
What if I lose my original documents?
You should contact your attorney to confirm the legal aspects of replacing the documents as some documents are more important than others. If your attorney is no longer in business or you have moved, you may need to change attorneys to confirm your current needs. Some estate planning documents, such as your durable power of attorney, should be updated around every 10 years, so it may be time to have your estate plan reviewed, regardless.
Time for a True Story
Most estate planning attorney will tell you situations where people actually forget they own a revocable living trust, or when they die, their heirs cannot find a copy. Trust planning is not for everybody, so make sure you keep your documents in a safe place and your family knows where they can find them. While every situation is different, we see lost originals, unsigned copies, incomplete copies and more on a daily basis, all of which can cause heartache, nightmares and litigation for your heirs. This means that you should do good estate planning with a good attorney that has been in business for a long time so that even if you lose your documents, your estate planning attorney will have copies for your heirs.
If you want to learn more about estate planning for your situation, please sign up to attend a free monthly seminar. Also, you may want to learn more about estate planning with a copy of my book, The Top 20 Ways to Protect Your Florida Estate.