I was just reading a legal question-and-answer site about a family who could not find their estate planning documents. They wanted to know what to do. Apparently, the family had done their estate planning quite a while ago, and the relative in question had just passed away. Now the family is furiously tearing up the house trying to figure out where the living trust and will are. The questioner asked if they would have to probate the estate if the documents could not be found. Short answer is, yes if the documents cannot be found, the estate will need to be probated and will be distributed through the laws of intestacy. Here are some tips to avoid the ordeal of losing documents and having to go to court to pick up the pieces.

Tell Your Family Members You Put Together an Estate Plan

I don’t know about you, but I know plenty of people who are pretty secretive about anything that has to do with money. So they put together a secret estate plan that no one knows about. What’s worst is the person who created the estate plan picks people to serve as trustees and agents without even telling them they have been selected or asking if those people want to serve. What ends up happening is that this person ends up spending good money on an estate plan that fails on its face since no one knows about it, or the agents selected cannot or will not serve. If you are going to make an estate plan, you need to let your loved ones know you made a plan, and then tell them exactly where the plan is. If you select trustees and agents to administer your plan, you should at least talk with them first about serving and also take into consideration if that person has the temperament to serve.

Locking Up the Only Copy of Your Estate Plan in Your Safe Deposit Box

Probably the number-one place a will or living trust goes is the local safe deposit box at the bank. After all, it’s a deposit box in a big safe at the bank, and the documents should be okay there, right? But here is one thing to keep in mind. Don’t keep your only copy in the safe deposit box! If you have ever tried to get into a safe deposit box when the account owner is not there, it’s like pulling teeth to get the bank to let you in. Banks have strict restrictions about accessing safe deposit boxes. If your only copies of the will are in that box, California Probate Code allows the bank to open a safe deposit box for the purpose of locating a will. However, the bank will not let just anyone get the will. You have to be named as executor or someone with authority to get those documents. A better place to keep your estate documents is at home in a fireproof safe, with backup copies somewhere else such as with family members who are trustees or agents of the estate plan. Many lawyers will keep copies of your documents for safekeeping when they give you the original ones. Some law offices also offer to store estate planning documents on a client’s behalf.

The bottom line is, your estate plan should not be a secret! Talk to family members who are affected by the plan. Tell them about the plan and how it is going to work!