May 3, 2017

Please do not ever have more than one original of any document. Otherwise, should the client choose to change their will - at any point - they will have to go recover all signed original documents. Not destroying those original copies would expose the client's estate to unnecessary litigation upon their death. 

April 28, 2017

I am very surprised at other attorneys not wanting to store wills for their clients. In our office are many many fire-files full of wills. By this I mean that we own file cabinets that have been rated as fire-resistant for one hour or more by an underwriter laboratory. Never store wills or important client property anywhere but a fire-rated cabinet or safe.

 

There are MANY reasons to store wills for our clients.

 

First consideration for your law practice's bottom line- this is the number one way to get the estate after a person passes, or to hopefully have the client come back to you for changes. Of course I want the liability- my office doesn't contain a fireplace or stove or other source of possible fire like a house does and is statistically unlikely ever to burn. And if I can't keep a will safe, how can I keep any of my clients' documents safe?

 

We are in a mid-size town and our practice is to ask what the client wants to do, track what they decide, and if they want to store it with us, we send home a photocopy stamped with the law firm's information so that they know where it is. If they take it, we scan it in so we know for sure that it was signed.  We also watch obituaries and contact the family of deceased clients to let them know that we have a will. That way we also can find out if the will has been replaced and can be destroyed.

 

I would never make multiple "original" wills. I believe that would require that all "original" wills must be produced at the opening of an estate for it to be valid.  I always sign multiples of original trust agreements and powers of attorney, though, and keep one copy as our "office" copy. If there is a danger of POAs being lost, or the client was too shaky to sign more than one, we will record the POA.

 

I don't agree with storing a person's will with the clerk of court, because they are not actually going to do that unless the will is not for probate or the person is under conservatorship because Chapter 633 says that they have to do that for a Ward. Recently, clerks have actually tried to insist that they wouldn't even take the original will of a decedent not for probate because of e-filing but again, they are still required to do that.

 

Lastly, it drives me up the wall when people place a will into a safety deposit box. If the decedent was the only person on the box, then the bank won't open it up without someone being appointed executor. But you can't become executor without the original will, so...  then you would have to go through an additional long process to get permission that I don't want to type out here. I always tell clients that if they are so sure that they want to put it in the SDB, then they need to put the future executor's name on the box as well, knowing of course that the future executor could get into it prior to their death.

 

 

April 27, 2017

I do not recommend storing original wills for clients. What if there is a fire? A flood? Theft? If you are going to store them, you better have safe and secure storage. I send the originals and as many photocopies as the client wants home with them. That includes the wills and POAs. I advise them that the original must be stored in a safe place either at home or in a safe deposit box at a bank. If they choose to use a safe deposit box, then Iowa law allows their heirs access to that box one-time to retrieve the will even if they are not listed on the box, however, their heirs must know where the box is located and have the key. I advised the same for the POAs but they should give copies to their regular medical care providers and financial institutions.

 

We advise that the client store the signed original in a secure place. It could be a safe deposit box, but the important thing is that it’s in a safe place where it will be able to be located after testator’s death—because, of course, it won’t do much good to have the will all safe and sound if nobody’s going to be able to find it when that time comes. Whether it be a will or one of the various powers of attorney (healthcare POA, statutory POA, etc.), the important thing is that the documents are safe and able to be located when that becomes necessary.

 

For wills, we have the client sign one original, and we make two copies of that signed original. The client keeps the original and a copy, and we keep the other copy.

 

For powers of attorney, we have the client sign four originals, one of which the firm keeps. We usually recommend that the client give a signed original to the agent appointed by the power of attorney.

 

Iowa's statutory law of wills provides that the clerk of court shall accept wills and keep them on file. That's probably the most secure method of storage. It's a good idea for the lawyer to keep a true copy. The testator should also have a true copy. 

We package all originals separately from copies—this includes the wills, trusts, powers of attorney, HIPAA, and living will.

 

For our trust clients, clients are sent home with a maroon binder with copies and originals are inside a plastic blue transparent envelope.  The colors are helpful because when clients come in for an estate planning review or a family member is looking for documents after a client passes away, we can tell them what to look for. 

 

For will based plans, we have a plastic envelope that has a tie on one side and a pocket on the other.  Originals are put into the “tied” side and copies are in the pocket.  We tell clients that the “tie” should not be opened except for very good reason.  The pocket is easier to get into and those copies may be used. 

 

Clients are instructed to keep their originals in a safe place like a safe or safety deposit box.  We ask them where they intend to keep the documents and make note of their answer in our file.  The note in our file is very helpful.

 

No originals are ever kept in our office.

 

I will say that my firm, for which maybe 25 or 30% of the work is estate planning, always has the client sign multiple originals of a will. The client gets one, our firm keeps one, and then there’s usually at least one other signed original that we suggest the client give to the person appointed as executor.

 

We keep wills in a fire proof vault unless the client requests to take it with them (often kept in a personal safe or safety deposit box).  POA’s are kept with the regular files and scanned into the server as copies are as effective as originals. 

 

What is the best approach to storing wills and other estate planning documents after they’ve been executed?  Do you recommend leaving them with the drafting attorney or having the client store them somewhere else?  Are there different considerations for wills vs. other documents like powers of attorney or trust agreements?  For wills, is it ever a good idea to have the client execute duplicate originals?  I’ve tried to do some research on these issues with mixed results, and I would greatly appreciate the input of Iowa attorneys practicing in this area.  Thanks in advance for any insight!

 

 

 

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Annie von Gillern

 

Collaborative Attorney, Mediator, Compassionate Advocate

von Gillern Law Firm, PLC

303 Locust St., Suite 250

Des Moines, IA 50309

515.428.0775

 

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