Now that you have taken the time and made the investment to have a professionally prepared will, trust or other estate planning documents created, the question arises, “what do I do with these documents?”
Even in this digital age, the original signed instruments must be preserved and be accessible when the time comes. Some county clerk’s offices in North Carolina have repositories to file wills for safekeeping. Even so, this is somewhat out of date practice that could result in confusion for your heirs and potentially an even greater risk of loss.
If the original document is lost or destroyed, a copy may not be legally viable. Placing your documents in a secure location is the best defense against loss. Let your Executor or Trustee know where your original documents are kept. Some people keep their documents in safe at home, others put them in a safe deposit box at a bank. Either way, the Executor/Trustee/Heirs will need to be able to access the safe or safety deposit box after your death. If they don’t have the combination to the safe, are not on the safety deposit account, or don’t know where your paperwork is kept in the first place, then the time and effort put into your estate planning could be for nothing. The key is taking reasonable steps to make sure the documents don’t get lost and that the people who need them can access them when needed.
In spite of best intentions, situations do arise where an original will is lost, or all that is found is a copy. When this happens, there are steps that can be taken, however difficult and expensive they may turn out to be. North Carolina law provides procedures for probating a lost will or copy of a will. With a copy, an affidavit by two subscribing witness, or one subscribing witness and the attesting notary public, can be used to authenticate the copy and have it admitted for probate. This works fine if these witnesses can be found, if they remember the event and are willing to sign an affidavit. In reality, the passage of time and mobility of people makes this method problematic to say the least.
If there is no copy, application can be made to the Clerk of Court to prove the proper execution and contents of a lost will by other evidence. The other evidence would almost certainly have to include live witness testimony. This requirement could present a potentially insurmountable obstacle as well.
Probating a lost will or copy of a will can be difficult and will be expensive. If the lost will or will copy cannot be probated, then the estate of the deceased will be administered under the rules of intestate succession. People make their wills and estate plans for good reason and avoiding an intestate estate administration is often a primary consideration. Executed original wills, trusts and estate planning documents are some of the most important documents in people’s lives. Taking the time and being intentional about the safekeeping of these documents cannot be over emphasized.
If you have questions about wills, trusts or other estate planning issues, please contact The Doyle Law Offices, P.A. today. We have been representing clients with their estate planning needs since 1995 and would be honored to be of assistance to you and your family.