Other than, “Why do I need a Will?” one of the most common client questions is “Where do I keep my Will?" Both questions are equally important but obviously the second follows the completion of the first.
Regardless of where you ultimately decide to store your Will for safekeeping, it is absolutely imperative that your spouse, children, parent, trusted friend, attorney, or executor know where it is located. At the very least, have a copy of your Will that can be easily discovered and that clearly states the location of the original. You should always destroy any prior Wills to avoid possible confusion. I provide all of my clients with a specifically dedicate thumb drive that has executed copies of their Will and all ancillary planning documents. From the PDF copy on your thumb drive you can e-mail a secured copy of your Will to your executor with instructions as to the physical location of your Will. Remember, privacy and safe storage is worthless if nobody can find your Will after your passing.
As with all planning philosophies that I promote, it is important to remember that you are no longer able to answer questions and assist your family after your death. Your head is not the best storage facility.
As you develop and enhance your generational planning system, consider the following choices for the safe-keeping of your Will and other important documents.
Safe Deposit Box Historically this is the most common choice, albeit with inherent obstacles. This was probably more common when people lived in the same town all of their lives and the town in which they lived only had one or two banks. Our society is much more mobile and people bank virtually all over the world.
As with any storage decision, the primary obstacle is access. Even if the Will is known to be in the safe deposit box, if it is rented in your name only (single, divorced, widowed, old school) then the bank may restrict access only to the executor of the estate. Fair enough, except that an executor cannot be appointed until the original Will is filed for probate. But if the original Will cannot be filed because it is in the safe deposit box –Boom! -- Catch-22.
If two people are registered on the box (husband and wife) the survivor can gain access if there is a survivor and they know where the Will is located. I recently had a client that couldn’t remember if they even had a Will. After checking with three different banks with whom they did business, they found an old Will in an old safe deposit box, together with some jewelry they also had forgotten about.
Recognizing a rather common problem with access, the Texas legislature has proffered a series of solutions granting access to a safe deposit box to “examine” the contents to look for a Will, deed to burial plot, or life insurance policy (Texas Probate Code Sections 36B, 36C, and 36D). The process can be cumbersome and again presupposes that a spouse, parent, adult descendant, or executor knows that the safe deposit box exists.
Another solution would be to rent the safe deposit box in the name of your Living Trust, such that your successor trustee could gain immediate access. However, in a perfect plan the Living Trust owns the decedent’s assets and the probate of the Will might be less important or unnecessary. This is still a good plan for accessing other important documents.
Side Note: Sometimes access to a burial plot can be more time sensitive than the process or the discovery permits. This highlights another reason why a Will is not the best document for designating burial instructions or donation of organs.
Fire Proof Safe at Home: The use of a personal safe eliminates the access problems noted above, provided that a trusted person knows the safe’s location, and combination. This is my preferred choice and my wife and I both have access to the safe as do each of our boys. Our safe is very heavy and bolted to our concrete slab to prevent our safe from being stolen or blown away in a tornado. Sophisticated thieves have the equipment to not only steal the contents of a safe, but to carry off the entire safe. I have two friends who can attest to this surprising inconvenience. For this reason please do not use a small stand alone safe like my grandfathers, which my son was able to pick up and put in the back of our car. In most instances a thief is not after your Will (although I saw a movie in which a disgruntled heir did so) but a thief that is after your jewelry probably won’t return your Will.
Side Note: A fireproof safe bolted to your slab should survive most fires and tornadoes, but might be a less secure solution if living in an area highly susceptible to flooding. Hurricanes Katrina and Sandy come to mind.
Original With Estate Planning Attorney: Very often a client is given a copy of their Will with a stamped message on the front that says: “Original is in Will Vault of Lawyer & Lawyer, 123 Probate St., Dallas, Texas”. This is a reasonable option for a large law firm with a seemingly perpetual existence, even if your attorney changes firms, retires, or dies. It is conceivable that a Will could remain in such vault for 30-40 years. I see this on a number of Wills that I review, one of which was drafted in 1963.
For obvious reasons this is a risk if the drafting attorney is in a solo practice or small firm whose existence could be of a shorter term or highly mobile. Earlier this year I was revising a Will and Trust for clients in their late 90s whose sole practitioner attorney had retained the original of their Wills. After several weeks of trying to locate the attorney who had long since moved, we were unable to discover what had happened to the original Will. This could have been an acute problem if either client had been incompetent to execute a new Will or died before executing a new Will.
Side Note: Often an attorney retains your Will in their vault in part for safe keeping but also to ensure that your family returns to the law firm and hires the firm to represent the estate and probate the Will. Even if you retain the original, make sure that the attorney keeps a signed copy.
The County Clerk: Texas and many other states permit a Will to be deposited with the county clerk in the county of the testator’s residence upon the payment of a $5 fee, for which a certificate of deposit is issued. This would not be my first suggestion for a number of reasons. However, if an heir or executor cannot find a Will, this is a place to look. As with any other third party holding possession of a Will, retrieval can be a cumbersome or overlooked process. In our mobile society a person could change their county or state of residence, making recovery of the Will more of a scavenger hunt unless the certificate of deposit can easily be found.
Locked in a Desk Drawer or File Cabinet: This option might be convenient but not very secure against risks of fire or theft. It is a good idea to keep a copy of a Will that is convenient and has directions as to the location of the original Will that is more securely stored.
Wrapped in Plastic Bag and Stored in a Freezer: Please don’t do that. The security risks are obvious and the freezer doesn’t necessarily survive a fire, hurricane, or tornado.
Remember, whatever your decision, make sure somebody knows how to find your Will. Always destroy prior Wills.
© Will Morris, JD, LLM 2014
Historically, most people think of an estate plan as a “Simple Will” which turns into a dusty old document tucked away in a safe deposit box, safe, or desk drawer, creating a false sense of comfort. As a document without force or effect until after death, it risks becoming a dead and incomplete expression of intent: never changing despite a succession of life events such as marriage or remarriage, birth of children and grandchildren, changes in wealth or inheritance, divorce, loss of a spouse, or dramatic change in health or disability. A lonely Will, without an accompanying system, just lays there waiting for you to die and hoping that your executor and heirs can locate and identify all of your assets.
However, the following statistics suggest that writing a Will is only part of the process. A provision that your spouse or children will receive “all of your estate” is meaningless if they don’t know what you own or where to find it. It is also confers no benefit if you become incapacitated and all of that information stored in your head cannot be recovered.
A record of online accounts is crucial to a system, (Online Accounts – Where is Your Cheese? March 1, 2013) but I find that a significant number of clients just don’t do the computer thing. And of course some assets are not necessarily managed online - an old life insurance policy, real estate owned in Hawaii, family burial plot in Arkansas, gold coins or savings bonds in a safe deposit box, stock certificates in a passive business venture, or mineral leases in Wyoming.
Granted, a “Simple Will” may be simple on the front end, but it won’t resolve calamitous complications and failed expectations on the back end. Sometimes the old cliché “you get what you pay for” becomes a haunting reality. You need to finish the job, set some time aside and incorporate the following items into your planning system. I suggest storing the information all in one place, preferably on a thumb drive.
The goal of a system is to plan a smooth transition of responsibility and management and distribution of assets in the event of illness, disability, or death. If it seems like a lot of work to you, just imagine how overwhelming it would be for a spouse or children after you are gone. It is clearly easier for you to make decisions and create your system now, without any acute time pressures, than it will be for your family, who may have only hours or days to figure it out.
Make a system part of your legacy.
© Will Morris, JD, LLM 2014
A client recently asked that I review a Will that she had obtained by using an online document preparation service. I was particularly disturbed because the client had inadvertently disinherited her stepchildren. She and her husband had intended to treat each other’s children from a prior marriage, together with their natural children, for purposes of inheritance. She said they had answered all of the questions that LegalZoom asked them, so I decided to figure out how this could happen.
I understand and agree that LegalZoom is not a law firm or an attorney, may not perform services performed by an attorney, and is not the substitute for the advice of an attorney. Rather, I am representing myself in this legal matter. No attorney-client relationship or privilege is created with LegalZoom.
Observation #2 – The LegalZoom interview asks the client to identify “children” but under the Help screen asks and answers the following question, which starts the confusion.
What about my stepchildren whom I have not adopted?
A child who is not yours by birth and whom you have not adopted should not be listed. You also should not include minors for whom you serve as a legal guardian. If you want these children to receive a portion of what you own, you will be able to do so later in the questionnaire.
Observation #3 – I searched through the questionnaire by answering multiple questions in different ways to trigger some inquiry about step children. The only place I could find such an option was under the category of “Additional instructions in your will”. with the caveat that nobody would review these self created instructions.
You can enter any additional instructions or messages that you want included in your will. Any instructions you add will supersede any conflicting information you provided earlier in the questionnaire. Please note that LegalZoom will not review this section for consistency or completeness.
Please enter your additional instructions here.
Observation #4 – Under the Help screen for Additional Instructions, LegalZoom offers a copy of a Sample Will for nine different States, but not Texas. Under “other states” a Sample Will appears that contains several conflicting options for additional provisions that might be included in a client’s Will. It is left to the individual to figure out what provisions might coordinate with their plan. It would clearly be improper to select all of the options. As noted above, LegalZoom had already issued a disclaimer that they would not review for consistency. Interestingly, not one of the options explains how to include step children. And then the ultimate caveat with the Sample Will:
Your answers to the LegalZoom questionnaire have not been applied to these sample documents so they are not fit for use.
NOT FIT FOR USE !!! As with many online services, the client is led to believe on the front page that they can have the peace of mind of a complete estate plan without the expense of an attorney. Of course, only two things can disrupt that peace of mind (i) a consultation with an attorney who takes the time to explore all of the client’s concerns and potential conflicts, or (ii) the client actually dying and having their family learn that your peace of mind was artificial and ineffective.
In the example above the husband’s Will was drafted in the same way such that, depending upon which spouse died first, only the natural children of the second to die would inherit anything from either parent, thereby totally disinheriting the natural children of the first to die. Estate planning should not be a lottery.
The online document providers ask a few simple questions that may in some instances provide a template for the generic family. But, for the most part they leave the client to be their own expert. As guidance under a Help screen LegalZoom noted that 60% of clients chose one option and 40% of clients chose another option, implying that only two options existed and leaving it to the client to determine their proper outcome.
A review of a Trust prepared by another online service had a very clear statement that California Law would apply to the Trust, although the client lives in Texas. The same Trust provided that if the Wife died first, then upon the death of the Husband, all assets would then pass to the Wife. An odd result since the provision assumed that the Wife died first.
Providing for the support of one’s spouse and children as well as the management and distribution of assets in the event of incapacity or death, is an important process that warrants much greater attention than filling out a form. A proper estate plan has many moving parts, variables, and contingencies that can only be uncovered by understanding each individual’s story and needs.
© Will Morris, JD, LLM 2014
The person whom you select as a guardian of your minor children may change as circumstances and “life events” change. If you have healthy grandparents they may be your first choice, with a sibling or close friend evolving into the best selection in later years.
If the selection of a guardian is not an obvious choice for both spouses, below are a few considerations to guide you in making an informed decision. It is important to make a decision NOW and avoid potential family discord– updating your selection can be easily done in the future. (Texas Probate Code Section 677)
It is OK if you DO NOT select a family member. Relatives may be geographically distant, don’t know your children well, have different values, have health concerns, or simply not be ready to raise your children. Although relatives may feel a moral obligation, their selection may not be in the best interests of your children.
Are they geographically close to you? As your children get older it may be better for them to stay in the same school, keep the same friends, and be in a familiar and nurturing social environment. Sending a 10 year old child to live on Uncle Ned’s farm in Nebraska might be an emotional shock to someone who has lived in Dallas for many years. However, your brother or sister living in California may be a more natural fit than an irresponsible sibling living in Texas.
Do your children and the prospective guardian know each other well? For younger children the emphasis may be more on how well the guardian knows and interacts with your children. The association may be through school, church, or long time friends. For older children you may wish to seek their input. (NOTE: A child over the age of twelve (12) may choose their own guardian in some circumstances.(Texas Probate Code Section 680)
Do they have other children the same age? Selecting a guardian who is single or never had children can create an enormous burden or life style change for that person. If your children have cousins that are close in age, their aunt or uncle could be the perfect selection. Or, your children may have grown up with and attend school with close friends whose family would accept your children into their family very easily.
Do they share your same world view, education values, religious preferences, interests in sports, or other lifestyle considerations? When possible, you want to minimize the cultural, emotional, and lifestyle changes for your children. If your son or daughter is active in sports or music, or if raising your children in a particular faith tradition is important, you may want to select a guardian that will support those interests.
Would your guardian need to purchase a larger house? The financial responsibility of supporting your children is primarily yours, but you may want to consider the immediate impact on your guardian in your overall plan. You may wish to have the guardian move into your home or assist in purchasing a larger home for the guardian, to accommodate their expanded family. Life insurance is often a good bridge to the financial security.
© Will Morris, JD, LLM 2014
A person who dies without a Will or has not provided for the disposition of their property by trust or other contractual means is said to have died “intestate”. To fill the gaps created by those who have not voluntarily controlled a plan for themselves, the State of Texas essentially writes a Will and prepares a generic estate plan for them. I call this the “Texas Plan”.
The Texas Plan can have particularly traumatic results for (i) blended families, (ii) couples living together in a committed relationship but not married, (iii) unmarried couples owning real property in just one person’s name, (iv) married couples owning both community and separate property, (iv) children with special needs, and (iv) single persons with no children.
The Texas Plan assumes strict statutory preferences, taking into consideration - a person’s marital status, children of current and prior marriages, and characterization of property as community or separate. The Texas plan does not include any tax considerations or benefits that may have been intended a spouse or significant others.
Since a house is often the most personal and significant asset, the following situations illustrate how the Texas Plan created dramatic unintended consequences.
Even in a traditional family setting the Texas Plan will not achieve the goals that most people would craft for themselves to (i) ensure privacy, (ii) minimize or avoid probate, (iii) select guardians for their children; (iv) designate agents to make health care decisions or end of life decisions (v) select guardians for themselves during any periods of incapacity, (vii) plan for the disposition of bodily remains (vii) ensure asset distribution in line with personal intentions, (viii) minimize or avoid family disputes, (ix) minimize or avoid the risk of unintended consequences, and (x) to the extent possible or necessary, to minimize or avoid Federal Estate Taxes.
If you currently have the generic Texas Plan and are still alive, you should consider opting out and have a custom plan prepared for you that preserves your legacy and meets the unique needs of your family.
© Will Morris, JD, LLM 2014
During a recent visit with an estate planning colleague we agreed that the most frequently asked question among clients is “Do I need a Will?” Hidden beneath the surface of that simple question are two related questions - “Why do I need a Will?” and “Do I need more than a Will?” If you do not have a plan, the State of Texas dictates one that may result in unintended consequences for you and your family. (See What if I Die Without a Will 03/01/12) A coordinated planning system creates peace of mind and family security by building expectations that you control. Below are some thoughts on the risk of dying intestate (without a Will) or without an updated plan.
You moved to Texas from another State. (1) Texas is a community property State, which may dramatically change your expectations of how property passes to your spouse and children. (2) A non-Texas Will may not have the necessary language to permit “Independent Administration” in Texas, thereby significantly increasing the costs, delays, and horror stories associated with probate.
You and your spouse have children together, especially minor or special needs children. (1) You will want to customize the care and values for your children, (2) If you do not pre-select a guardian for your minor children, an expensive and contentious guardianship proceeding may result. Your children may be placed with unintended relatives. (3) You may wish to stagger the distribution of your assets to your children at different ages to avoid having them receive a large sum at the age of eighteen.
You are married without children - but parents and siblings are living. Your may wish for your spouse to receive all of your assets instead of parents and siblings receiving a portion of certain assets.
You or your spouse have children from a prior marriage. Without a Will or other plan, your surviving spouse will retain ownership of only one-half of your community property (including your house) and the children from the prior marriage will receive the other one-half of the community property. That can be a shock after one year of marriage or twenty years of marriage. You may wish for have a more peaceful resolution of the homestead.
You are in a committed relationship but are not married. This is a particular concern when the home is owned by only one person in the relationship. If the owner dies intestate, the other person receives nothing. If owned together, but without the right of survivorship, the survivor will retain ownership of only one-half and the descendants of the decedent will own other one-half. Community property and inheritance laws apply only to married couples.
You own real estate, mineral interests, or a family business. (1) May result in complicated and fractionalized ownership of property or family business, particularly with minor children, blended families, or several siblings. (2) expensive probate proceedings could be required in each State where real estate or mineral interests are owned. It is much easier to make specific planning during your lifetime.
You own a life insurance policy. You will want to ensure that your beneficiary designations are up to date and proper planning is in place for minor children. See June 1, 2012 comment, “Life Insurance and Estate Planning – Updating Beneficiary Designations”.
You do not have a Durable Power of Attorney, Medical Power of Attorney, HIPAA Authorization, or Directive to Physicians. Each of these documents appoints an agent to act on your behalf in emergency or life threatening situations. With these documents in place expensive guardianship proceedings can also be avoided.
These are just a few of the additional questions that arise from the generic question, “Do I need a Will?” The generic answer is “yes’ and then some. An old lawyer in Arkansas used the tag line for his practice – “If you don’t know the law – know a lawyer”. In the area of estate planning most people do not know the many “what if” questions and answers.
© Will Morris, JD, LLM 2014