Friday, May 1, 2015

Where is your will?

Clients often ask where they should keep their planning documents. While there is no one answer to this question, common places include a safety deposit box at a bank, a safe, or even a filing cabinet where other important documents are kept. The most important fact is that your loved ones need to be able to locate your will after you have passed away.

When you probate a will, your loved ones need to find the original, signed document. As explained briefly below, probating copies of a will (when the original is lost) is a tedious, expensive and often unsuccessful process. This is because Tennessee law presumes that a lost will has been revoked by you, absent evidence to the contrary. Since you are no longer around to explain what happened, the law presumes that the reason your loved ones cannot find your will is because you didn't want them to. It is not enough for your loved ones simply to offer a copy to probate, they must offer evidence sufficient to overcome the presumption that you revoked your will, often demonstrated by details such as by showing that you did not have the custody and control of the instrument after its execution; that you had lost your testamentary capacity for a period before your death; that the will was in existence at the time the mental alienation occurred (see In re Estate of Leath, 294 S.W.3d 571, 575 (Tenn. Ct. App. 2008)).

Imagine the frustration your loved ones will feel when they know you signed a will—they may even have a copy of it! But because the original cannot be found, your estate will pass by intestacy or by your previous will. It is possible that simply because the will is lost, different individuals will receive parts of the estate.

So if you want to avoid the costly process of proving a copy of a will, ensure that your loved ones can find it after you pass away. This can be accomplished by simply letting your executor, attorney, or any other trusted friend know where you keep your documents. Additionally, if you keep your documents in a safe, make sure your loved ones know how to access the safe. Similarly, granting access to bank safety deposit boxes can prevent the hassle of your loved ones having to go before a judge to get a court order to drill a safety deposit box after you have passed away. 

Planning ahead with simple steps such as these will help your loved ones avoid major headaches after you have a passed away. 

This is not intended to be legal advice and does not form an attorney-client relationship with any reader.

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