If you were to ask attorneys across the country how often they get phone calls like the following, the answer (“Very frequently”) may surprise you. The phone call might go something like this: “Hi, this is John Jones. My dad, Bill Jones, passed away recently and we have torn the house apart looking for his estate planning documents. But despite our best efforts, we can’t find his will or trust anywhere! I know he did an estate plan with your office a few years ago, but we are at a total loss trying to find the original documents. Please tell me that you have the originals stored at your office?”
Although some attorneys make it their standard practice to retain and store a client’s original will for safekeeping as a service, that trend is becoming increasingly rare. As more law offices make efforts to “go green” by storing only digital copies of legal documents, they are giving their clients the responsibility of keeping their original documents safe.
So what happens when the bank, title company, or court requests your original legal documents, and no one can find them?
State laws differ on how to handle a missing Will. Generally, if a document is lost or has been inadvertently destroyed (such as in a house fire), there are legal avenues for allowing a copy to be used in place of the original.
Several states’ laws follow the common law principle that, when a deceased person’s Last Will and Testament cannot be located, the legal presumption is that the will was intentionally destroyed or revoked by the deceased person. This is especially true if there is evidence that the deceased person had the will in their possession prior to death. However, that presumption can be overcome with clear and convincing evidence to the contrary. Such evidence might include testimony from the decedent’s attorney, friends, or family about statements the decedent made about the Will’s existence or recent changes made to the Will with the assistance of an attorney. In other cases, evidence of a recent fire or flood that destroyed the Will may be useful to rebut the presumption that the will maker intended to revoke the Will.
In addition, if all interested parties to the will (e.g., heirs) agree that a photocopy of the Will is the correct version of the decedent’s Last Will and Testament, a probate court will likely allow the will to be submitted. This is true in Massachusetts. However, if there are disagreements about whether the photocopy represents the decedent’s Last Will and Testament, the copy may ultimately be rejected, and the default intestacy laws will govern how the property in the estate will be distributed among the heirs.
As a result of the various state laws that govern whether or not a photocopy of a Will can be used to prove a deceased individual’s intent, it is very important that you keep your original Will in a safe place, such as a fireproof safe or a safety deposit box, where it will be protected from loss, fire, water damage, or theft. But just as important, you must also ensure that the individuals or entities you put in charge of your affairs after you pass away know the location of your Will and can gain access to it when you are gone.
Financial Power of Attorney
A durable financial power of attorney is a legal document that allows you to name someone to act on your behalf in legal and financial matters (an agent) should you become incapacitated (unable to manage your own affairs). Generally, it is best practice for the agent to provide an original signed and notarized power of attorney document for it to be accepted by a financial institution, entity, or individual. In some states, an accompanying acceptance document must also be signed by the agent, notarized, and presented with the power of attorney document for the power to be valid. States that have enacted the Uniform Power of Attorney Act of 2006 typically allow a digital copy or photocopy of a properly signed power of attorney to be used in place of the original. Other states may require that the power of attorney specifically state that a photocopy has the same force as the original for the document to be accepted. Because state laws may differ in this regard, a best practice is to be sure to keep your original signed power of attorney documents somewhere safe, and if you want a photocopy to also be valid, include language to that effect in your power of attorney. Check with an estate planning attorney who practices in your state to make sure you understand what your state’s law requires.
If your state law does not allow a copy of your power of attorney to be used in place of the original, your agent may have to seek a judicial determination that the copy of your power of attorney can be used. However, if the judge declines to make that determination, your agent may be required to seek a guardianship or conservatorship over you to be able to make decisions on your behalf. Therefore, you should store your power of attorney documents carefully so that they are available to your agent if and when the agent needs to use them.
Because of the nature of trusts and the typically less-strict formalities associated with their creation, it may be easier to rely on a photocopy of a trust when the original cannot be located. Unlike a Will, in most states a trust is not required to be registered with the court or the county recorder to be legally valid. So if you can get all the trust beneficiaries, including minors as represented by their guardians, to agree that a photocopy of the trust instrument is a true copy of the grantor’s most recently executed trust, that may be sufficient for the trust’s administration to move forward.
The above approach may work when a family tends to be agreeable and there is no controversy surrounding the trust’s administration. However, in certain family situations, there can be conflict, tension, or distrust. In such a case, it is prudent to seek a judicial determination that the photocopy of the trust document is the governing trust document and that it may be used to govern the administration of the trust. A judicial decree that the trustee is acting appropriately in relying on that photocopy for their decisions can significantly assure the trustee that they will not be sued in the future if somebody eventually discovers an original trust document that is different from the court-approved copy.
Health Care Proxies
Copies of health care proxies or healthcare directives are almost always as acceptable as an original. Because so many different medical professionals can be involved in the care of a single patient, it becomes impractical for each professional to have to verify that the health care proxy is an original whenever the agent must make a decision.
Nevertheless, when differences arise regarding the care of the person who made the health care proxy, the original legal document may be required to settle any disputes. If a bona fide dispute arises and individuals or healthcare providers cannot determine whether a copy of a health care proxy is the most recent or should be honored, a judge may need to rule on the issue to provide direction to the incapacitated person’s medical providers and loved ones or a guardianship may be necessary.
Safeguard Your Documents
The bottom line is that, although we are increasingly moving to digital documentation of legal decisions, there is still great value in having the most recent original signed document so that, if there is any question as to the intent of the testator, principal, or grantor, the document can be brought before a decision maker to prove what the intent of that person was. Currently, there is no better way of proving that intent than presenting a signed, witnessed, and notarized original document. It is important, however, to understand your state’s laws and what the evidentiary threshold is before you try to rely on a photocopy or a digital copy of an important legal document.
Always keep your originals safe and let your trusted decision makers know where they are. If you do not want people to go through those documents when you are not around, keep them locked in a safety deposit box, a fireproof safe in your home, or a secure (possibly fire- and waterproof) location, and make sure that somebody other than you knows how to quickly find and access them. You can save your loved ones significant trouble if you make sure that your original documents are safe and accessible when they are needed. Know that, in the worst-case scenario where your original documents have been lost or destroyed, you are not completely without options. If you need help finding your documents or discussing next steps after being unable to locate your or your loved one’s documents, call us.
 Unif. Power of Attorney Act § 106(d) (Unif. L. Comm’n 2006).