You’ve taken the long view. You’ve done the research. And you’ve made a plan. A plan for who is going to help you if you lose capacity (power of attorney documents) and a plan for how to distribute your assets after your death.
But those plans won’t come together if they cannot be found.
A few times each year we receive a call from someone who is trying to locate a will for a loved one who passed. We also receive calls trying to track down power of attorney documents for a loved one who is experiencing a medical event. Sometimes the loved one knows the name of the attorney who prepared the documents. Sometimes they do not.
What happens, when the drafting attorney is no longer practicing?
When an estate planning attorney retires from practice, they will typically find a younger estate planning attorney to be the keeper of their estate planning files. If an estate planning attorney dies while still practicing, they should have named an attorney to take over their estate planning files.
Ideally, at least in Wisconsin, your loved one can call the State Bar of Wisconsin and they will be given the name of the attorney who took over the files. They can then contact that attorney and should be able to obtain a copy of the document.
Life is not always ideal.
More commonly, the name of the keeper of the files is not reported to the State Bar. Instead, your loved one makes calls to various estate planning attorneys trying to locate the file. When we receive these calls, we offer to send out an email to a network of estate planning attorneys in the area to determine if anyone has the file.
Unfortunately, not all attorneys plan. Yes, even estate planning attorneys sometimes fail to plan for their own death or retirement. Echos of the ancient proverb “Physician, heal thyself.”
Even when the keeper of the file can be located, there is no guarantee that the file will have signed documents. It used to be the practice to keep only unsigned versions of the estate plan. An unsigned estate plan is useless.
Moreover, even if there is a signed copy, Wisconsin still requires that you have the original will. The attorney is not going to have the original will in their file. If it is power of attorney documents you are seeking, you have a little better situation, as a copy is as good as the original.
If the original will cannot be found, the plan you put together to distribute your assets will fail. It will be determined that you died without a will and the government will decide who serves as the Personal Representative (aka Executor) and how to distribute your assets through a probate process. If signed versions of your power of attorney document cannot be found, you will be facing a court-ordered guardianship and have little to no say over who is appointed to serve as your guardian or how your affairs are handled.
So, how can you ensure your estate planning documents are found and your wishes are fulfilled?
Securing Your Will
It is important for you choose a secure, yet accessible location for your will so that it is protected and can be found when you die. Secret compartments and hidden access points makes for great drama in movies and TV, but in the reality those types of tools may actually prevent your will from being found and your final wishes being fulfilled.
A fireproof safe is a great option – as long as your named Personal Representative/Agent(s) know where it is and can access it. If you need keys to open it, make sure they know where the keys are kept. If you need a combination, make sure they know or can find the combination.
Similarly, a safe deposit box at a bank can be a good option. But like the fireproof safe in your home, you need to be sure your people can access it. If the document giving them the authority to access it is in the safe deposit box and they are not listed as a co-owner, they will likely have to obtain a court order to access it.
There is a time-honored tradition of using your freezer. This is a viable option. Freezers are mostly fireproof and waterproof, so the document(s) will be protected. Again, make sure your people know the documents are there. As a quick aside: As someone who personally handles these documents, if you choose this option, please try to remember to periodically defrost your freezer. The smell of freezer burn lingers on the documents for quite some time.
Because finding the original will is so important, a Revocable Living Trust can be a good alternative to a will. A Trust can minimize or even eliminate a number of potential hiccups that can come with a will. Along with avoiding probate, a copy of the trust is as good as the original.
Power of Attorney Documents – Communication is Key
Although you do not need the original power of attorney documents, it is important to maintain a copy of your power of attorney documents in a safe and accessible place. You should also give your Health Care Power of Attorney to your primary care physician and your Durable Power of Attorney for Finances and Property to your bank and/or credit union.
If you have already shared the details of your plan with your people, there is no need to keep it locked anywhere. Store it on a shelf or in a file cabinet where you keep your other important documents.
If you are keeping your plan private until you pass or lose capacity (not recommended), you may want to put the entire plan in that fireproof safe in your home or safe deposit box at the bank.
Technology has come a long way. You may want to consider making is a digital copy of the plan as well.
Ask your attorney if they plan to keep a copy of the signed documents. At Rebecca Mason Law we keep signed copies in the office and can upload them to a secure client portal that allows you to access them through an app on your computer, tablet, or smartphone.
You can also ask to have a digital copy of the plan given to you on a portable drive. That way you have your own digital backup and do not have to worry about tracking down that attorney in the future.
Lastly, you should destroy any old versions of you will to make the probate process as seamless as possible. You do not want confusion about which documents should control.
Last component of bringing the plan together: Your assets
Equally as important as being able to find your planning documents is providing your Personal Representative and Financial Agent with a list of your assets. Treasure hunts can be fun for all ages, but culling through boxes of old mail and calling financial institutions to track down assets is a huge headache and will likely leave assets undiscovered. Don’t leave your treasure hidden. Listing which financial institution holds your assets, account numbers, balance of the account, and a contact person can be an invaluable roadmap.
As Benjamin Franklin famously said: “by failing to prepare, you are preparing to fail.”
When you are ready to start planning, contact Rebecca Mason Law, we can help.