Avoid Losing, Misplacing, or Accidentally Discarding a Will
As important as having a Will in place that clearly outlines your wishes and intentions after your death is, it ultimately won’t matter if the Will cannot be located on your death. Surprisingly, keeping a Will in a safe and secure spot after its execution is an often overlooked part of the estate planning process.
Issues can arise when a client keeps the original Will in their possession, which can lead to it being misplaced or accidentally thrown out. This can cause obvious legal problems for your executor: if your executor is unable to locate your original executed Will after a thorough search, the lost Will will be presumed to be revoked.
So, Where Should You Keep Your Will?
Many clients opt to have their original documents held with their lawyer since a lawyer has certain professional obligations for file retention and safekeeping of documents. Specifically, the Law Society of Ontario recommends that in keeping any original documentation, lawyers should do so in a safe, fireproof, and locked facility.
Keeping your original Will with your lawyer significantly reduces the risk that the Will is lost and/or is accidentally destroyed. This way, you can still keep a copy of the Will with your personal records, knowing that the original is safe and sound with your lawyer.
A client is never precluded from keeping their original Will. However, there are risks associated with doing so and, certain considerations need to be taken into account.
Your first instinct may be to store your original Will in your safety deposit box at your bank. After all, this ensures that the Will is in a safe place with little to no chance of getting lost, damaged or thrown out.
The issue with this plan, however, is that in order for your executor to access the safety deposit box and remove your Will on your death, the financial institution may require a grant of probate confirming the executor’s authority. A grant of probate, however, cannot be obtained without the original Will. And so, your executor is caught in a catch-22 and may ultimately have to apply to the court for an order to obtain the original Will, incurring more costs and delays.
What about a personal safe in your home? Lockboxes and safes are often used to hold confidential documents and valuable personal effects – could this be another good place to store your original Will?
It depends: if the executor knows the Will is located in your personal safe and they are provided with the key or code, this may be the solution for you. However, if the key can’t be found on your death or if you changed the code without telling your executor, then the executor would need to take steps to drill open the lockbox or safe. Once again, they may run into problems without a grant of probate confirming their authority and would be in the same predicament discussed above.
Ultimately, if you do decide to keep your original Will, care must be taken in properly advising your executor and loved ones on its location and exactly how to access it on your death. This is in addition to taking extreme care to ensure the Will is in a safe, secure, and damage-proof place.
In addition to your Will, care should be taken to also properly store your Power of Attorney documents. The same discussion applies equally to these documents, but there are some additional considerations.
Unlike a Will that only comes into effect on your death, a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care are only effective during your lifetime. In the case of an emergency, you may need to access your Power of Attorney documents quickly, and you may need either an original or a notarial copy on an urgent basis.
While it is preferable to keep one original Continuing Power of Attorney for Property and Power of Attorney for Personal Care with your original Will in safekeeping, you may want to consider keeping a notarial copy or an original copy of these documents so that you or your attorney(s) always have access to them.
For example, if you are in the hospital for whatever reason, your attorney for personal care can quickly get a notarial copy from your personal documents at home so that they don’t run into any problems when they are at the hospital in establishing their authority.
Going through the process of preparing Wills and Powers of Attorneys takes time and energy, as well as expenses, which unfortunately can be all for naught if there is improper storage of the original documents, leading to them being lost, destroyed, or even accidentally thrown out. In our experience, dealing with clients over the years, we have seen all of these happen. These are powerful documents where a copy is not enough, and thus it is important when preparing these documents to carefully consider where they should be properly stored.
— Stephanie Battista