Executor – Can You Locate the Will?
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. This can definitely be a problem with hoarders but you do not need to be a hoarder to lose track of where your documents are located.
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 someone we believed to be the executrix, I arranged with a local bank officer and the client to grant access to her relative’s safety deposit box that we understood held the Will. The box was empty.
On further examination, it was discovered he had moved his documents to a safe at home which also needed to be opened. When the Will was read we learned the terms were quite different.
At least a copy of the document should ordinarily be shared with someone who is appointed executor. This gives that person the opportunity to decline the appointment. Also, she should know where the original Will is. Original Wills are important. 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, 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 petition for permission to file a copy is not the recommended or usual procedure. For obvious reasons, the Register of Wills wants to know 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. A new Deed can be generated without having access to the older one.
Wills are different. They are recorded after death when you cannot ask.
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 both living wills and 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 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 is what to do. First, know where your original legal documents are at all times. Next, tell the person or persons who are supposed to act on them in crisis where the documents are. Remember to change this when you move them. Finally, review and update your documents on a regular basis. Although a document’s validity is based on the rules at the time of signing, if there are changes to the law the preferred method is to include the new changes.
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.