“Getting organized” is a popular New Year’s Resolution. Organizing your estate plan should be a part of that goal.
If you already have an estate plan in place, congratulations. But do you know where it is? Does somebody else know where it is in the event of your death or incapacity?
Find those documents
It’s not uncommon that someone will get their estate plan in place, put the binder of documents somewhere “safe” and then never look at them again. Out of sight, out of mind, it seems. But that’s not a good thing. Your estate plan should be a set of documents — a will, perhaps a trust, a health care directive, a HIPAA form, and a power of attorney — that is reviewed and updated regularly over the years. If you can’t even remember where you put the documents, you’re less likely to think about the necessary updates.
Powers of attorney and health care directives are often needed in emergency situations — accidents, health care crises, or dementia, for example — if the documents can’t be located, they won’t be of much use to you.
Get those documents out and take a look. If they’re more than three to five years old, it’s probably time for a review with your attorney. If you have a trust from before 2012, it’s definitely time for a review as there have been significant changes in the law since then.
Who else knows about the documents?
Additionally, it’s important that someone besides you (and your spouse, if applicable) know where those documents are and can access them. At your death or incapacity, the person you’ve named to act for you will need the original documents. They should know where to find those documents, and if you’re comfortable with it, they should also have a copy.
Attorneys generally keep copies, and these days those are electronic copies, which can be helpful. But the originals will be necessary, particularly the will. Some time ago, it was common for attorneys to maintain the original documents, particularly wills, in safes in their offices. That was to ensure the will wasn’t tampered with, and likely also to assure the attorney was notified to handle the probate at the client’s death.
With the advent of computers and attorney liability for original wills, that’s no longer standard practice. And believe it or not, attorneys do eventually retire or die themselves. If your will or trust was done some time ago and the attorney maintained the originals, it may be time to contact the attorney to obtain your original documents.
Where should documents be kept?
Most attorneys will give you your original documents in a nicely organized binder. My office gives our clients the original documents in a binder with “Estate Planning Portfolio” on the spine, and a thumb drive with a complete set of the documents, which can be easily uploaded and shared as necessary. But where to put the binder?
Despite common belief, a safe deposit box at a bank is not a good option. If the bank isn’t open when you or your trustee or agent need the documents, you’ll have a problem. In addition, if the safe deposit box is in your name, rather than the name of your trust, no one else can access it to retrieve the documents.
A safe at home is an option, but only if someone else can access the safe. Again, if no one can get to the documents, they won’t be of any use at the time they are needed most.
A filing cabinet works, but if it’s locked, again someone else will need access.
Sitting the binder on a bookshelf or in a drawer will work just fine — again, if someone else knows where the documents are. (Are you sensing a pattern yet?)
Folks seem to worry about fires. (It is California, after all.) If there’s a fire and you survive but your documents do not, it’s easy enough to execute new documents. If you and your documents do not survive, the fire will be the evidence needed to prove you did not intentionally revoke the documents, and then the copies can be used.
Documents for family members
While you get your own documents organized, it’s a good time to check in with your family members. Do you know where your parents’ wills, trust, powers of attorney, and health care directives are? Are they current?
What about your children? If they’re minors, have you completed a nomination of guardian? Nomination of Guardian should be done in a stand-alone document as well as in your will. The will only comes into play if you die. If you become incapacitated and a guardian needs to be appointed for your minor children, that separate document will be necessary. Also, consider appointing health care agents for your minor children in the event you can’t act.
If your children are adults, do they have a will, a health care directive, and a power of attorney? Every adult aged 18 and older needs to have these documents in place. Accidents can happen at any time to anyone. Once your child reaches age 18, you are no longer able to make decisions for them, nor are you entitled to any health care or other information. That often comes as a surprise to parents when their children leave for college or are rushed to the hospital in an emergency.
Estate planning documents for you and your family are a classic example of “hope for the best, but plan for the worst.” Make sure that plan is up to date and readily available. Then you can focus on that kitchen junk drawer.
Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild.” Reach her via email at Teresa@trlawgroup.net