The best place to store original estate planning documents is somewhere secure, protected from damage, and accessible to the people who may need them.
Estate planning attorneys are often asked where to store original wills, trusts, powers of attorney, and healthcare directives. There is no single correct answer. The best choice depends on the document, the storage location, and who can access it if you become incapacitated or die.
Regardless of where you store the originals, make sure at least one trusted person knows exactly where they are and how to retrieve them.
Why Does the Location of Your Documents Matter?
Your estate planning documents cannot carry out your wishes if no one can find or access them.
Different documents may be needed at different times:
- A healthcare directive may be needed immediately during a medical emergency.
- A financial power of attorney may be needed if you become unable to manage your finances.
- A trust may be needed by your successor trustee during incapacity or after death.
- An original will is generally needed to begin probate after your death.
A storage location may be physically secure but still create problems if no one can obtain the documents when they are needed.
Should You Store Estate Planning Documents in a Safe Deposit Box?
Some people believe the best place to store original estate planning documents is a safe deposit box at a local bank.
A safe deposit box can provide protection from theft, fire, and accidental damage. However, access can become complicated if you are the only person authorized under the box agreement.
Giving someone a key or telling them they have permission to use the box does not necessarily give that person a legal right to access it. A safe deposit box is a rental arrangement governed by the agreement with the bank and applicable state law.
If you are the only person who signed the agreement and you become incapacitated or die, another person may need additional legal authority before the bank will permit access.
Safe Deposit Box Access in Maryland
The Maryland Register of Wills explains that if a safe deposit box is in the deceased person’s name alone, a deputy from the Register of Wills may need to be present when the box is opened to locate and remove the will. More information is available in the Register’s estate administration guidance.
A properly drafted financial power of attorney may also authorize an agent to access a safe deposit box during your lifetime. Maryland’s statutory financial power of attorney includes authority that may permit an agent to enter a safe deposit box when that authority is granted.
The bank will still need to review the document and confirm that the agent has the required authority.
How to Make a Safe Deposit Box More Accessible
If you choose a safe deposit box, ask the bank:
- Who is legally permitted to access the box?
- Can another person be added to the agreement?
- Can your revocable living trust be named as a lessee?
- Will your successor trustee have access?
- Will an agent under your power of attorney have access?
- What documentation will be required after your death?
- What happens if the key cannot be found?
If the bank allows your revocable living trust to be added to the agreement, your successor trustee may be able to access the box after you can no longer serve.
Make sure your trusted loved ones know:
- The name of the bank
- The exact branch location
- The box number
- Where the key is stored
- Who is authorized to access the box
Consider the Bank’s Hours
Banks have limited hours. If your family needs a healthcare directive or another document during an evening, weekend, or holiday, the safe deposit box may be inaccessible.
For this reason, a safe deposit box may not be the best location for the only available copy of a healthcare directive or medical power of attorney.
Should You Store the Documents in a Home Safe?
A home safe can provide both security and accessibility.
For a home safe to be an appropriate place for original estate planning documents, it should ideally be:
- Fire resistant
- Water resistant
- Difficult to remove
- Bolted to the floor or another secure structure
- Located somewhere a trusted person can find
Someone you trust should have the combination or know how to obtain it if you become incapacitated or die.
Do not make the location so secret that no one can find the safe. You also should not keep the combination in an obvious place next to it.
Should Your Estate Planning Attorney Store the Originals?
Traditionally, many estate planning attorneys offered to hold their clients’ original documents for safekeeping, often without charging a fee.
Today, many attorneys do not want to assume the long-term storage responsibility and potential liability. Others may agree to retain the original will but not the trust, power of attorney, or healthcare directive.
Before leaving original documents with an attorney, ask:
- Which documents will be retained?
- Will there be a storage fee?
- Who can request the documents?
- What happens if the attorney changes firms?
- What happens if the attorney retires, becomes incapacitated, or dies?
- How will your family locate the attorney years from now?
If your attorney retains an original, keep the attorney’s current contact information with your other important records.
Should a Corporate Trustee Store the Documents?
If you have named a bank or trust company as your personal representative or successor trustee, it may be willing to store your original estate planning documents.
Banks and trust companies often have procedures for protecting original legal documents. They may also be well positioned to locate the documents when they are needed.
If you choose this option, make sure one or more trusted people know:
- Which institution has the documents
- The appropriate department or representative
- How to contact the institution
- What information will be required to obtain the documents
Confirm the institution’s storage policy periodically, particularly if the bank or trust company merges with another organization.
Can You File Your Will With the Register of Wills?
Maryland residents may deposit an original will with the Register of Wills for safekeeping.
The Maryland Register of Wills states that an original will may be filed for safekeeping for a one-time fee. During the person’s lifetime, the deposited will is not a public record and generally can be released only to the person who made it or someone authorized in writing.
This option applies to the original will, not the entire estate plan. The Maryland Register of Wills does not accept trusts, powers of attorney, or advance directives for safekeeping.
If you deposit your will, tell your personal representative or another trusted person which county’s Register of Wills has it.
Should You Keep Digital Copies?
Digital copies can be helpful as backups and can make information easier to share with trusted people and advisors.
Possible storage options include:
- An encrypted cloud storage account
- A password manager with secure document storage
- An encrypted external drive
- A secure client portal maintained by your attorney
- A protected folder on your computer
Digital copies do not necessarily replace signed originals. An institution or court may require the original document or a properly certified copy.
If you use digital storage, make sure your trusted person knows:
- Which service you use
- How to locate your account
- How access should be requested
- Where password or digital-access instructions are stored
Do not include passwords in an unprotected document labeled “passwords.”
Which Documents Need Immediate Access?
Not every document should be stored in exactly the same way.
Healthcare Directives
Your healthcare agent should have a copy of your advance directive. Your physician and healthcare system may also be able to add a copy to your medical record.
Because these documents may be needed quickly, do not keep the only copy in a location available only during banking hours.
Financial Power of Attorney
Your financial agent should know where the power of attorney is stored. Depending on your preferences, the agent may receive a copy in advance or be told how to obtain it when needed.
Revocable Living Trust
Your successor trustee should know where the complete trust agreement and amendments are stored.
It may also be useful to retain a current certification of trust, which can provide essential trust information without disclosing every provision of the complete agreement.
Original Will
Your nominated personal representative should know where the original will is located. A photocopy may help identify your wishes, but probate generally proceeds more smoothly when the original can be produced.
Make Sure Someone Knows Where the Documents Are
Regardless of where you store your original estate planning documents, make sure a family member, trusted friend, advisor, or estate planning attorney knows where to find them.
Provide enough information for that person to locate the documents without giving unrestricted access to everyone.
You may want to create a simple document locator containing:
- The location of your original will
- The location of your trust and amendments
- The location of your powers of attorney
- The location of your healthcare directive
- Your attorney’s contact information
- The name of your nominated personal representative
- The name of your successor trustee
- Instructions for accessing a safe or safe deposit box
Review and update the locator whenever you move a document or change an important appointment.
What Happens if the Original Will Cannot Be Found?
The consequences depend on state law and the circumstances.
In some situations, when an original will was last in the willmaker’s possession but cannot be found after death, a court may presume that the person intentionally revoked it. That presumption may sometimes be rebutted with appropriate evidence.
If the will cannot be admitted to probate, property may be distributed under an earlier valid will or according to state intestacy law. That outcome may be very different from what you intended.
Your trust and other estate planning documents can also become difficult to use if no one can locate the current signed versions.
Review Your Storage Plan Regularly
Check your document storage plan whenever you:
- Move to a new home
- Change banks
- Replace a home safe
- Update your estate plan
- Appoint a different personal representative or trustee
- Change attorneys
- Create new digital accounts
- Move to another state
Confirm that your trusted contacts still know where the documents are and can access them when necessary.
Get Help Protecting Your Estate Planning Documents
If you have questions about where to store your estate planning documents, or if you need to create or update them, contact Andre O. McDonald, a knowledgeable Howard County, Montgomery County, and District of Columbia estate planning attorney.
- Howard County: 443-741-1088
- Montgomery County: 301-941-7809
- District of Columbia: 202-640-2133
You may also request a consultation online.
DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE, OR TAX ADVICE.
