Dear Mr. Miller:
Introduction: My Mom is getting ready to move into an assisted living facility. She is cleaning out the house?and that?s good. The income tax returns from 1954 are finally being tossed. But I asked her yesterday where her Will and Living Trust were. She told me in her estate planning notebook on the den shelf.
When I found that notebook and looked inside it only had the photocopies. So I asked her again. She looked at me blankedly for several minutes and then gasped. She said when she had the shredding company come to take care of all of the old tax returns and other unneeded paper she thinks that went with it. Does that mean she has to start all over again? Are the copies good enough? What do we do now?
Where to Keep Estate Planning Documents: This situation arises all too often. Practices differ from one attorney to the next. Once the signing is completed we send to the client the original and one copy of each document, the latter in a notebook. We tell them to place the notebook around the house and tell their loved ones where the notebook is kept if anything ever happens to the client. We further tell them to place the ink originals in the bank safe deposit box or a fire resistant facility in the house (such as a safe or fire resistant file cabinet).
Asset Locator Chart: The notebook has an ?Asset Locator Chart? in it specifying where everything is (including the ink original documents) and what is owned. If the loved one finds the notebook then he or she has found the ?treasure map.?
Client Reality: How many of our clients actually follow that instruction; that?s hard to say. At reviews a few years later we sometimes find that the client brings the originals and notebook in stuffed in the original shipping envelope; some have never even opened the envelope.
There was another client that many months after the signing called to find out why we had never sent the documents to her as we had promised. We ship these envelopes to the client by UPS or Fed Ex. And we follow up to confirm that the company reports the shipment as delivered. In this case we went back on the Fed Ex tracking website to re-confirm. The delivery notes indicated that the package had been left in the garage with a note on the front door. We told the client and, sure enough, the package was still there in the garage. So not all clients keep these documents as ?top of mind? concerns. Now we call the client 45 days after signing to make sure they have received the documents and everything is satisfactory.
Validity of Copies: In your Mom?s case, the answer to your question depends on which document we are speaking. As to the Living Trust, I have never had an institution (Bank, Escrow, Brokerage) ask for the ink original. They all seem to be satisfied with a copy and a certification from the Trustee that the Living Trust is still in effect. As to the Power of Attorney for Finances, I suspect at least some institutions will want to see the ink original. For the Will, there is a presumption under California law that if the ink original Will cannot be found at the time of your Mom?s demise, it is presumed that she intended to revoke it.
Solutions: We have had similar situations such as your Mom?s occur. We have most, if not all, of our client documents in word processing or PDF format in our computer archives. We can, and have, simply reprinted them, along with any needed amendments or updates, and had the client re-sign them. This has worked for us. If her attorney does not have digital copies, then it may be somewhat more difficult to solve but certainly not impossible.
The best recommendation is to have her call her attorney and see what he suggests. Definitely, don?t let this go to the back burner as you don?t know when an emergency situation with your Mom may arise.