The short answer to the question of whether your estate planning binder needs to be in your “go bag” is – probably it does, especially if it contains the original signed documents. We are in fire season here in California and the east coast is being pelted by hurricanes, so this is unfortunately a timely and important question.
Most attorneys now do not retain their client’s original estate planning documents. Mainly because retaining a client’s original documents imposes additional duties on the attorney such as producing the original Will within 30 days of death of the testator. An attorney also is required to reasonably protect the original documents in a secure storage. One reason why some attorneys retain originals is a way to have the family members come back to that attorney to administer the trust or estate. It is the practice of our office to give all the originals to our client and we retain only an electronic copy.
I advise my clients to keep their originals in a safe place such as a safety deposit box or a fireproof/waterproof safe. A copy of the documents should be accessible with it written on them the location of the originals. Keeping a binder full of documents can be difficult if that box or safe is small and the estate planning binder does not fit. Another issue can be that it may be difficult to access the safety deposit box or the safe when the owner dies unless another person is on record and has a key for the safety deposit box or has the combination or key to the safe. There are code provisions that allow a party to get court authority to access a safety deposit box for the sole purpose of locating a will. And a locksmith can be hired to open a safe.
At the minimum, you should maintain an electronic copy of your estate plan. Most of the documents that we draft – trust, power of attorney, and advance health care directive – have a provision in them that states that a copy is just as effective as the original. However, there are certain circumstances and certain documents where that is not sufficient.
A Will has requirements where the original is important, especially if a probate has to be opened. There are ample cases where the court questioned whether the Will was “lost” because the testator revoked it. There are code provisions that address a “lost will” and a copy of a Will in that circumstance is helpful and along with certain allegations that the testator did not intend to revoke the Will. If the court is satisfied, it can admit a copy of a Will to probate.
I have had situations where a title company or a bank requires the original trust or power of attorney. If the original of a trust is required and it cannot be located, the solution is to petition the court to establish the terms of a lost trust. I have done this several times, but they are fact specific including situations where I had a copy of a Certification of Trust which was helpful to prove the existence of the trust and the named trustees. Producing the original power of attorney is a bit more difficult because the alternative is to obtain a conservatorship of the estate.
Back to what you should grab when you are evacuating your house. There are recommended packing lists for emergencies such as the Ready Checklist at the FEMA website – www.ready.gov . It does not list estate planning documents under important family documents, but you could easily include a thumb drive that contains electronic copies of the documents in that waterproof bag.
Stay safe everyone.