Does Your Executor Know Where Your Will Is?
After the time spent intently deciding who should receive the grandfather clock, your coin collection, and what specific percentage from the bank accounts and the proceeds of the sale of the house should be distributed to whom, one critical factor often ignored by will makers is that the person appointed as executor needs to know where to find the will. If this information is not shared on a regular basis — and, unfortunately, lost wills happen — distributing an estate can take an unexpected turn.
Wills, by the way, are not the only documents that need to be located on the fly. Financial powers of attorney, health care powers of attorney, records of beneficiary designations and living wills are also often consigned to an unknown area of the house, left in a safety deposit box in a bank no longer used by the former depositor, or moved to a new unknown and unknowable location.
Faced with this disturbing development, executors and agents under powers of attorney may be forced to use copies or, worse, know that a document exists and be unable to describe or enforce its terms.
Once, when meeting with a believed executrix, I arranged with a local bank officer and the client to drill open her brother’s safety deposit box that we understood held the will. The box was empty. On further examination, it was discovered that her brother had moved his documents to a safe at home which was also cracked open. When the will was read we learned that another law firm had been appointed by the will to represent the estate. That was information it would have been helpful to know in advance.
At least a copy of the document should ordinarily be shared with someone who is appointed executor. This also gives that person the opportunity to decline the appointment. If there are controversial provisions, then the testator (will maker) might decide to limit circulation but someone besides the maker really needs to know what is going on.
After death, a copy of a will, if necessary, might be taken to the register of wills and, with additional petitions, information and certifications, filed in the process known as probate. This is not the recommended or usual procedure. For obvious reasons, the register of wills wants to know that this is an authentic document and that it has not been replaced by a later one. Original wills are even more important than original deeds. Deeds are officially recorded when they are made. Wills are recorded after death.
If wills are regularly updated and executors notified regarding their whereabouts, the problem of searching for them should become less significant.
With living wills, federal law requires that hospitals ask whether a patient being admitted has a living will. Note the law does not require a living will but only that the hospital ask. If the family does not know, this can make answering the question more difficult.
For health care powers of attorney, our office has been known to receive anxious phone calls from family members to locate a copy when a parent or relative is admitted to the hospital. Especially if the document was prepared in the past few years, we can fax over a copy but obviously it is important to know where the original is kept.
For financial powers of attorney, the alternative when the original or at least a copy cannot be located and the maker is unable to act, would be guardianship which is a court proceeding. Transfer of real estate requires the original power of attorney.
In summary, first, know where your original legal documents are at all times. Second, tell the person or people who are supposed to act on them in crisis where the documents are and also tell them when you move them. Third, review and update your documents on a regular basis. Finally, when signing legal documents, it is a good idea to ask the notary to use the official raised seal although this is no longer required in Pennsylvania. Originals signed in black ink without a raised seal may look like copies. I know, having been asked once to leave a real estate settlement table and go to a nursing home with a notary to have a new financial power of attorney signed. The original, which was not prepared by my office, had been signed in black ink without a raised notary seal.
For more, listen to “50+ Planning Ahead” a weekly radio program on WCHE 1520 on every Wednesday from 4:30 pm to 5:00 pm with Janet Colliton, Colliton Law Assocs., PC, and Phil McFadden of Home Instead Senior Care.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.