Executor – Can You Locate the Will?
In all the busy running around from day to day it is easy to lose track of important documents. It can also be helpful to know which ones are needed in original form and when a copy (or electronic version) will work as well. Here is some general information. Of all the documents that need to be located in original form, not copies, the Will is most important. If you know you were appointed as Executor of the Will for your parents or a friend, make sure, even if they have not shared the actual document with you, that you know where the original is located if needed.
In this age when hoarding can be a problem, sometimes it is difficult to find the original Will – or even to know whether the document you have is the “Last Will.” Sometimes family members do not discard their old documents and prior documents are submitted for recording (known as probate) with the Register of Wills on their death. This can be a problem and an estate could be distributed in a way not intended by the individual.
Wills, by the way, are not the only documents that need to be located on the fly. Next in line would be financial powers of attorney, health care powers of attorney, living wills, and records of beneficiary designations and account statements. They might have been consigned to an unknown area of the house, left in a safety deposit box in a bank, 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 an 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. The original was finally located at home in a safe with unexpected results.
Original Wills are important. If there are controversial provisions, then the maker might decide to limit circulation but someone besides the maker, usually the Executor, really needs to know what is going on.
After death, the Will needs to be taken to the Register of Wills for recording, a process known as probate. If really necessary, a copy might be taken and, with additional petitions, information and certifications, filed. Filing a copy 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 typically officially recorded at the Recorder of Deeds office shortly after they are made and are available to the general public. 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. 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 sometimes received 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 it is good to know where the original is. Locating financial powers of attorney can be important. The alternative might be guardianship which is a court proceeding if the maker is incapacitated.
Here are the rules. First, if you are the person making the document, know where your original legal documents are at all times. Second, tell the person or persons who are supposed to act on them where to locate them in times of crisis and 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, if the notary has one, to ask her 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.
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.