Around the Bar

Woolf, McClane, Bright, Allen & Carpenter, PLLC

In probate, as in life, it is often the simple things that cause the most trouble. A critical, preliminary step in any probate is the location and submission to the Court of the decedent’s original last will and testament. Although a copy of a will can be admitted to probate, doing so adds additional hassle and expense.

This raises the question of who should serve as custodian of that document, and where it should be kept. More specifically, should the client keep it, or should it be retained by the attorney (or some other advisor) in their files? It should be noted that the decision is entirely up to the client. Nonetheless, there are advantages and disadvantages to each option.

• Attorneys are usually very good at keeping track of paper. Attorneys have the staff, systems and infrastructure to hold and safeguard important documents like wills. Most firms have either a lockable, fireproof safe in their office, or a safe deposit box or vault at their bank. Additionally, firms have the policies and procedures in place to track the location of documents and confirm their deposit and removal. Safeguarding the will is simply an additional service counsel can provide their clients. • Attorneys offer some degree of continuity. It is unlikely that the document will be lost or misplaced in a move or housecleaning, as could happen when the client keeps the will. Additionally, retaining the will ensures that the attorney who prepared it (or at least their firm) will be contacted about the death, and will have the possibility of advising the family regarding the probate. All things being equal, the attorney who prepared the document is usually in the best position to handle the probate. • Perhaps the best argument for the attorney keeping the will is that it can be convenient for the client. They do not have to worry about buying a safe, or putting the will in their safe deposit box. They may be perfectly happy to let their attorney deal with these hassles.

There is also a possible confidentiality advantage: keeping the will out of the client’s home eliminates the possibility of a nosy relative or heir discovering it and its terms.

• Keeping original client documents is not free, in either time or expense, for the attorney. This investment grows as the number of documents grows. Keeping a few wills for a short time as a convenience for a few clients is one thing; having a system to track and store wills for all of your estate planning clients is another. The attorney will have to keep the documents in a fireproof safe, if not a safe deposit box or vault at the bank. All of this adds up. • Attorneys may leave their firm or retire. Figuring out what to do with a sizeable collection of original client documents will be difficult and costly. At the very least, the firm will need to communicate with each client and give them the opportunity to choose to retrieve their documents or leave them with the firm.

• Many people want to keep control of their important documents.

Relying on another party for such matters, even if that person is their attorney, can be a cause of discomfort. Additionally, clients may have some concern (probably incorrectly) about being charged just to get access to their documents from their counsel. Keeping the will themself can be the simplest and easiest course of action. • From the attorney’s perspective, having the client keep the docu-

ment eliminates much of the effort and expense associated with keeping it. Although counsel should certainly keep copies of signed documents, those do not need to be kept in fireproof storage. In fact, many firms are moving to eliminate paper files, and are scanning and keeping copies of client documents electronically. • In our mobile society, people can expect to move at least once in their life. If they already have their documents, there is no need to go through the hassle of retrieving them from their counsel prior to the move.

• People lose things. Frequently, important original documents will go missing as part of the “purge” when people move into assisted living or a nursing home. This is perhaps one of the best arguments for having the attorney keep the original will – it will survive until it is needed. • Occasionally people will, intentionally or unintentionally, make handwritten changes and revisions to their original will. Previously, this might have invalidated the will in its entirety. Courts have recently shown some willingness to accept wills with handwritten notations on them, but it is still risky. Counsel can ensure the original will is kept safe and intact.

• A popular choice is a safe deposit box, which is probably the safest choice from a physical security perspective. The obvious disadvantages are cost and hassle. The bank will charge a fee for the box.

The client will also have to keep up with the key to the box, and will have the inconvenience of needing to visit the bank to review or retrieve the will. An additional consideration is who can access the box after the client’s death. Tennessee Code Annotated Section 452-905 requires a bank to permit an unauthorized person to access the box for the sole purpose of retrieving an original will. Nonetheless, it is preferable for a family member to be specifically authorized to access the box so that they will be able to quickly retrieve the will after the client’s death. • A fireproof safe or document box is a good choice as well. The primary concern is fire protection, so a large, heavy safe integrated into the structure of the home is not necessary. The client should be sure that someone else has (or knows how to find) the combination to the safe. • At the very least, the original document should be kept in a safe and secluded space in the client’s home or office. A desk drawer is a perfectly acceptable solution. Many people will keep their wills in the same place as other important papers, such as insurance policies or investment records, so that everything will be in one place for their executor. Although it sounds unusual, some people keep their important documents in the freezer (hopefully in a plastic bag) under the theory that it will be the last place to burn in the event of a fire. The point is that the location needs to be accessible, but not so accessible that the document will be accidentally moved or destroyed.

Regardless of who keeps the document and where it is kept, it is essential that the client let their family or advisors know where the original will is located. This will hopefully avoid a panicked search for the document after their death, and ensure that their probate can get off to a good start.