You’ve done the right thing. You’ve gone to an estate planning or elder law lawyer and had your basic estate planning documents prepared, ie. your Last Will and Testament, Financial Power of Attorney, Health Care Power of Attorney, etc. Now what do you do with these important documents?
Last Will and Testament
In Ohio, original Wills are very important. That is because if an original Will is lost, the law presumes that it was lost or destroyed on purpose. To admit a lost Will, the burden is on the individual seeking to admit the lost Will that it was executed in accordance with the law, what the contents of the Will were, and that no person has good evidence that the Will was revoked. In short, it is a process that is best avoided by ensuring that your original Will can be located upon your death.
A Will is best kept in a fireproof safe in your home or another safe place. It is important that your loved ones know where it is located and how to access it in the event it is needed (for example, how to get in the home and where the key is kept for the safe). If the Will can’t be located upon your death, it hasn’t served its purpose.
If, however, you don’t have loved ones nearby or that you can trust, you may wish to consider putting your original Will on deposit with the county probate court where you reside. For a nominal fee, the court will store your Will, confidentially, until your death.
A Will should not be kept in a safety deposit box. If the safety deposit box is only titled in your name, then upon your death, no one can access the safety deposit box without authority from the court. That authority is granted in your Will. A person could be appointed administrator which requires a bond, more filings and expense. But, again that situation is best avoided.
You may wish to refrain from giving copies out to loved ones if you think there’s any chance you will change your mind in the future. A Will can always be changed or revoked and it is best not to have revoked Wills out in circulation. It can promote a Will contest and also create hard feelings if a friend or relative was a beneficiary or executor and then not.
A Will need not be filed anywhere during your lifetime to be valid. In the event that you own probate property when you pass away, then the Will would need to be filed or probated with probate court.
Financial Power of Attorney
Although Ohio law says that a copy of a financial power of attorney is to be treated the same as an original, it is not uncommon for financial institutions to require the agent to present an original at least once before it will accept the document. For that reason, ensuring that your original Financial Power of Attorney can be located is important.
If you have full confidence in the agent you are appointing in your Financial Power of Attorney (hopefully, that is the case) or your agent is already assisting you with your financial affairs, then it is best to give the original to the named agent and keep a copy for yourself.
If you don’t like the idea of the Financial Power of Attorney being in the agent’s hands until such time that you are unable to manage your finances, then you could keep the document in a fireproof safe in your home or another safe place. It is important that your agent know where it is located and how to access it in the event it is needed (The same as in the case of the Will, as noted above). Again, if the document can’t be located at the time of need, it didn’t do anyone any good. Another option is to leave the Financial Power of Attorney with a third party that you trust for safe keeping until such time that you are unable to manage your financial affairs.
Remember, that, like a Last Will and Testament, a Financial Power of Attorney can always be changed or revoked. Hence, if you do decide to do so, it should be a notarized document, provided to your Agents and any financial institutions which received a copy of the previous document. If financial institutions or prior agents don’t know you’ve revoked or changed your document, they will continue to reply on the prior document in their possession.
Oftentimes clients ask me if the Financial Power of Attorney needs to be filed or recorded anywhere. A Financial Power of Attorney need only be recorded if it is being used to transfer real estate. Otherwise, it need not be filed or recorded anywhere.
Health Care Power of Attorney and Living Will
Under Ohio law, copies of Health Care Power of Attorney and Living Will documents are treated the same as originals. You should provide a copy of the documents to your primary care physician and if you are undergoing a procedure, especially in a different health system from your primary care physician, you should provide copies to the health care provider in advance of the procedure.
I generally recommend giving a copy of the documents to your first agent, and other family members if you so desire. You may wish to scan the documents and place them on your phone or email so that in the event you are travelling, you can access copies.
Like the Last Will and Testament and Financial Power of Attorney, the Health Care Power of Attorney and Living Will can be revoked or modified at any time. If you decide to do so, they should be notarized instruments and notice should be given to your agents and health care providers who were previously provided with copies.
If you don’t have loved ones nearby or that you can trust, you may also wish to consider putting your Health Care Power of Attorney and Living Will on deposit with the county probate court where you reside. For a nominal fee, the court will store your documents confidentially.
For more information of Estate Planning Documents and their storage and use, contact a Cleveland estate planning lawyer.