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Estate Planning Horror Stories: Tales of Missing or Non-Existent Estate Planning Documents

If your executor cannot find your estate planning documents, the court has no choice but to assume you died without a will. What does it mean if you die without a will?

What it means is that the state will decide what to do with your assets according to their intestacy laws. This, as you can imagine, could lead to some devastating consequences.

For example, singer Barry White and his wife had not divorced, although they had been separated for years. In fact, at the time of his death, White had been living with his longtime girlfriend. When White died, no estate planning documents could be located.

All of White’s assets went to his wife (because they technically had not divorced), and nothing to his current, longtime girlfriend. Whatever White’s desires may have been, without an integrated estate plan, it didn’t matter.

This instance highlights the importance of having physical copies of the estate plan available upon an individual’s death. If nothing else, this lessens the stress and strain of their successors and reduces the chance of family squabbles that could arise if the deceased’s wishes were unknown.

So, where is the best place to keep your estate planning documents?

Like most legal topics, there are various opinions about what is best. The best way to decide is to examine the advantages of each and see which best suits your needs. An estate attorney can also help guide you through the decision-making process.

The first step, of course, is to have the documents drafted and fully executed. It is always recommended that you hire an experienced estate attorney to draft your estate plan. Larry King wrote out a handwritten will that is purportedly valid under California law.  In there, he changed his heirs to his children from his wife that he was divorcing. However, although they filed for divorce, at the time of his death, they had not yet reached a settlement, so it was not final.  And, California is a community property state, meaning that even if his Will is upheld as valid, it can only give away his 50% of the millions of dollars at stake.  The other 50% belongs to his wife, no matter what his Will says.

Even more interesting is that the stakes are even higher because he and his wife had entered into a post-nuptial agreement not only stating that all property after their marriage was community property, but also turning all assets King acquired prior to his marriage to be community property.  When the divorce was filed, King sought to nullify the post-nuptial agreement – unfortunately, he died before they reached a settlement and his wife will likely have an even bigger piece of the pie no matter what the Will says.

Now, back to where to keep your estate plans…

My grandmother used to keep her estate plan in a carved wooden box on the top shelf of the closet, in the spare bedroom. They always smelled a bit of mothballs. We all knew where they were. Access was simple. Of course, a burglar could have stolen them just for the box, and in natural disasters-fire, flood, etc.-the documents would not have fared well.

If you want your estate planning documents to be kept at home, think about a safe.  Fireproof/waterproof safes can run anywhere from $200 to $2,000. Make sure several trusted people have the combination and have practiced opening it. If you are just using the safe to protect documents from damage, write the combination down on top of the safe. If no one can access the documents in the safe upon your death, you will need to go to Court to obtain permission to access the contents of the safe by other means.

A bank-specifically, a safe deposit box-is secure and dependable. But, be sure to provide a few trusted people with access to the safe deposit box and make sure they are on the bank’s list of persons that can access it.  Otherwise, it is back to court you go. Also, make sure you and your trusted loved ones know in advance what ID is required to access the documents. The drawback of a safe deposit box is that you can only access them at very specific times. Long weekends, evenings, and holidays will offer limited access, if any at all.

Whatever you decide, it’s important to work with an estate attorney with a track record of happy clients. Get your documents drafted and executed in a way that expresses your wishes, and accounts for a variety of potential “what ifs.”

Put your documents in a safe place, and be sure your executor or successors know the location of your estate planning documents.

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