When Do You Need Original Documents
If there is any question commonly asked about financial and estate documents, the most frequent is how long do they need to be kept. The answer to that question varies and can depend on circumstances. Where Medicaid might become an issue in paying for long term care, for instance, the government requires five years of financial records for the five year “lookback.” Documents that establish legal rights, such as passports, a decision that affirms benefits, and similar documents obviously should be kept as long as that right is needed.
Another pressing issue, probably more important and often ignored, is when is it important to have an original document and not a copy.
You would think that copies should be accepted everywhere. In fact, documents are being scanned and stored on other media in “paperless” offices every day. We have reached the stage when even Court documents and briefs in some jurisdictions are submitted electronically. Federal income tax returns can be filed electronically.
From time to time I may be asked to provide an original document to a financial institution some distance away. If we state that we can fax it, the invariable response is “Sure. That will be fine.” The fax, of course, is a copy.
Still, with all of the circumstances where original documents are no longer important, there are a few where the law has failed to keep up with the times or the suspicion might be, even if unnecessarily, that a copy is not enough. One of these is an original Will. If there is one original document you should be sure that your representative has or at least knows where to get to it, it is your Will. One reason I say this is because Wills are so often moved.
Some years back I spent a fair amount of time helping an Executrix search for her brother’s Will. We met with the bank officer on appointment. We established her credentials. We joined him to inventory the safety deposit box but the Will was not there. After some time, my client discovered the Will in a safe in a house. We could have saved the time and effort. If all she had were a copy, we could still file the Will for probate with a petition to have the copy accepted but Pennsylvania favors an original and has a presumption that, if it cannot be found, the decedent may have destroyed it with intent to disinherit. That presumption can be overcome by evidence and explanation but it is so much easier to have the original document.
One document that surprisingly does not need to be produced as an original is a Deed. Often people engage in fruitless searches to find original Deeds unnecessarily. The original Deed would have been recorded with the Recorder of Deeds office. If it was recorded in the past several years in Chester County and in many other counties, it can be located, read and copied from your computer from the on-line version. If it is an older document, the recorded version can be located by visiting the records section of the Recorder of Deeds office where the property is located and viewing the document on microfilm. The primary reason to locate a Deed is to find the description of the property, its titling and any restrictions on its use. Once this information is obtained, if the property is to be transferred or sold, a new Deed can be prepared.
The requirement for an original Financial Power of Attorney can be inconsistent. If the Agent under Power of Attorney wants to have it recognized by a bank, he or she would typically bring the original document, the bank officer would copy it, and the Agent can keep the original. Powers of attorney in Pennsylvania no longer require a raised seal. However, we have found it useful and continue to use a raised seal. This easily distinguishes it from a copy.
In a similar situation where an original document was required – in this case an original Power of Attorney for the person appointed as power of attorney – I found it necessary to visit a parent personally to have a new document executed so that settlement on the house could proceed. The title clerk at settlement claimed that the Power of Attorney prepared by another office with black ink signature and no raised seal could have been a copy.
If wondering whether you need an original document or a copy, ask someone who knows. We are in an unsettled time as to whether original or copy is enough. And in order to keep your original documents safe, make sure to use heavy-duty mailing tubes for safekeeping.
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.