What to Do and Not Do with Your Estate Planning Documents

by Anthony K. Khatchoui, Esq.

Creating and executing an estate plan is a process that requires thought and consideration. You must identify the beneficiaries who are going to inherit the assets that you worked a lifetime to acquire, how your beneficiaries are going to receive those assets, and whom to entrust to make decisions on your behalf in the event of incapacity. Once your estate planning documents are created and executed, many clients believe the estate planning process is completed. But, what is often overlooked is where your estate planning documents should be stored. 

At Pierro, Connor & Strauss, LLC, we recommend that clients have the following four documents: health care proxy, power of attorney, disposition of remains appointment, and will. A trust can also be useful to avoid probate and to manage your assets both during life and after death. Once you have all these essential estate planning documents, you need to make sure that they are stored properly so that the people you select as your agents and personal representative have access to them. 

Store the Documents Properly
Your estate planning documents should be stored in a safe, secure location. If you have a will, you should inform your personal representative (also called an executor), the person you appoint to handle your estate’s affairs after your passing, of where your will is located as well as the name of the law firm that drafted the will. It is common for law firms to store clients’ original signed documents, especially a will. If you want to keep your estate planning documents at home, you should use a waterproof and fireproof safe. We strongly recommend informing your agents and personal representative of the location of safe as well as providing them with the code or location of the key so that they can access the documents when necessary. If you don’t trust your agents with this information, you should select different agents!

Despite popular belief, using a safe deposit box in a bank is not a good choice for storing your estate planning documents. For example, the personal representative often needs an original will to access the safe deposit box which, upon the principal’s death, is locked.  Further, an agent under a health care proxy would have no authority to access the principal’s safe deposit box, even if the agent was only trying to obtain the principal’s health care proxy. If you do use a safe deposit box, you may want to have a joint owner on the account to allow the other owner to access those documents. 

Spread the Word
As noted above, it is critical that you tell your personal representative and agents of your health care proxy, power of attorney, and disposition of remains appointment where the documents are located so that your personal representative and/or agents can easily access them when needed. If your personal representative or agents do not know they have been appointed or where the documents are located, they will be unable to perform the role that you assigned to them.

You should also talk to your agents under a power of attorney, health care proxy, and disposition of remains appointment about what you want if you are unable to communicate your wishes yourself, such as whether you want: (i) to make certain changes to your estate plan if you need home health aides, (ii) life-prolonging medical treatment when recovery is unlikely, and (iii) to be cremated or have a burial service upon your death. Detailing your wishes ahead of time will enable your agents to execute your wishes. You may want to give your agents copies of your documents, especially your health care proxy so that your health care decisions can be made in accordance with your instructions rather than what the agent thinks is best. 

Avoid Confusion
Containing estate planning documents that have been superseded could create confusion among family members and lead to litigation.  We recommend to our clients that they destroy any estate planning documents that are no longer valid. 

In addition, do not write on your current documents. If you want to make a change, contact your attorney to formally change the document. Handwritten additions are usually not valid and could raise questions about the document. 

If you have questions about what to do with your own estate documents, please call our office at 1-866-951-PLAN and we’ll be happy to offer guidance.