June 2019 -- Iyar-Sivan 5779,  Volume 25, Issue 6

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Who Should Get the Originals and Copies of Your Estate Planning Documents

By Bernard A. Krooks,

Certified Elder Law Attorney

 

 You have finally gone through the estate planning process and signed all your documents.  That is a huge step in the right direction of making sure your wishes are carried out if you pass away or become incapacitated.  You signed several different documents, including advance health care directives, powers of attorney, last will and testament and perhaps even a trust.  However, you are not done yet.  Now, you need to decide what you should do with your original documents and who should get copies of your documents.

 

For a lot of folks, giving family members a copy of your estate planning documents seems like the right thing to do.  For others, it can make them feel uncomfortable.  After all, giving others your documents is akin to acknowledging that you will become ill or die someday.  While deep down we likely accept this reality, it is often difficult to share this acceptance with others.

 

First, let’s be clear, there is no requirement that you give originals or copies of your documents to anyone.  Conversely, there is no prohibition against doing so.  This is purely a personal decision.  Having said that, here are some pros and cons of each side of the discussion.  The final decision, of course, is up to you.

 

With regard to original documents, it has long been our law firm’s policy to have the client take those home with them, with one exception:  the last will and testament.  The reason it is a wise idea for the lawyer to retain the will is that if the client is in possession of the will and it cannot be found upon the client’s passing then it is presumed that the will was revoked.  This can cause problems in the administration of your estate and may lead to unintended consequences, including people inheriting your assets whom you did not intend or want to inherit.

 

So, what do you do with the originals (other than the will) that you take home with you?  Put them in a safe deposit box in a bank?  Not really a great idea or necessary since the documents themselves don’t have any monetary value to a thief or anyone but you and your family.  Better to keep them in a safe place at home where they can be readily accessible in case of an emergency.  That safe place can be in a fire-resistant safe or lockbox in your closet, or under your mattress, or anywhere else you so desire.

 

Now that we have a plan for your originals, what should you do with copies?  Should you give them to your children?  What about to the people you have named as trustee or executor?  Since there is no legal answer to this question, the right answer for you often depends upon your family dynamics and the relationships you have with your family and those that they have with each other.

 

One approach is to give copies to all who are or will be affected or impacted by your estate plan when you pass away or become ill.  If you do decide to share copies of your documents with your family, you might consider doing it all at once by having a family meeting.

 

 In addition, by sharing your documents you can let people know what responsibilities they will have and receive their commitment to carry out their duties if you die or become incapacitated; or not.  But wouldn’t you rather know now that they don’t have any interest in serving as your trustee or executor or agent under a power of attorney?  Also, and sometimes even more important, you can let someone know that they will not have a role in the administration of your estate and explain to them your reasons.

 

Another reason to share copies of your documents with your family is that some family members may not want to receive an inheritance from you.  They may, for tax or other reasons, prefer that their share of your estate go to their own children instead of to themselves.  Or, they may prefer that some of their share be left in trust to protect against divorce or creditors or for some other legitimate reason.

Finally, regardless of who you share copies of your estate planning documents with, it is critical that at least some of them know where to find the originals when needed.

 

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP and has been honored as one of the “Best Lawyers” in America for each of the last seven years. He is past President of the National Academy of Elder Law Attorneys {NAELA} and past President of the New York Chapter of NAELA. Mr. Krooks has also served as chair of the Elder Law Section of the New York State Bar Association. He has been selected as a “New York Super Lawyer” since 2006. Mr. Krooks may be reached at {914-684-2100}  or by visiting the firm’s website at www.elderlawnewyork.com.