Now that you have executed (signed with the proper formalities) your new estate planning documents, where do the originals go? There are several schools of thought on this, and different attorneys may have different recommendations. I also think that there are different answers for each document.
1. Will: It is very important to keep your original will in a safe, accessible place. This is because in Massachusetts, if a will cannot be found and the testator (the person who signed the will) had it in their possession before death, there is a rebuttable presumption that it was destroyed by the testator with the intent to revoke it. If this occurs, your property will pass according to the intestacy laws set by the state, and not as you directed in your will. A photocopy of a will is generally not allowed to be admitted, absent a showing that the testator did not intend to revoke the will, for example if the testator died in a fire and the will was in the house and was destroyed in the fire.
A better place to keep an original will is in a fireproof box in your house, or you can give it to your appointed executor and have them keep it in a safe deposit box or fireproof safe. If you change your will, be sure to get the old one back from the executor. You should not keep the will in your own safe deposit box as your executor may have a difficult time gaining access to the box after your death.
Some attorneys will keep your original will in a fireproof file cabinet in their office. This was done frequently in the past when people tended to stay in one place, and it almost certainly ensured the drafting attorney that they would be hired to probate the estate since the heirs would have to contact him or her to obtain the will. It is done less frequently these days because people move more frequently, and because some attorneys believe that keeping the original documents makes them responsible for alerting the client to any changes in the laws that may effect the documents.
2. Durable Power of Attorney: You should keep your original DPOA in a fireproof box in your house, and be sure that you have let your agent know where to find it in case they need to use it. Like your will…
…you should not keep your DPOA in your safe deposit box since your agent would need the document to gain access to the box. Some DPOA’s specify that a photocopy is as valid as the original, so you may wish to give a copy to your agent. However, if your DPOA is effective upon signing, that means your agent could use it immediately. While you shouldn’t appoint someone you don’t trust absolutely, you may not wish to have your agent in possession of the document until necessary.
Some DPOA’s specify that only copies certified by a notary public to be an exact copy of the original are valid, which provides an additional layer of protection. Your attorney may retain the original DPOA so that when your agent needs a certified copy the attorney can have some oversight of the process, and serve as a resource for the agent in fulfilling their duties.
If you give a copy of your DPOA to your bank or other instituation, and then execute a new one. Be sure to notify the bank in writing that you have a new DPOA and provide them with a copy of it.
3. Health Care Proxy and Living Will: You should keep the originals of your Health Care Proxy and Living Will in that same fireproof box with your other documents. You should also give copies of them to your agent apppointed under each document. These documents do not become effective until your doctor has declared that you are unable to make health care decisions for yourself, so there is no danger in their being misused. Again, if you change your agents under these documents, make sure you notify the prior agent that they are not longer named, and notify your doctors of the change and provide them with copies of the new documents.
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