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Physical Safekeeping of Your Last Will & Testament – Just as Important as the Document Itself

  • Published: September 21, 2022

In recent weeks, the death of Queen Elizabeth II has pervaded media coverage around the world and been the subject of countless conversations from intimate gatherings to office water cooler conversation. Most of the conversation has been focused on her stature and longevity as Queen, but the subject of the transfer of her wealth from one generation to the next is in immutable consequence of her passing that calls to attention wider reaching estate planning considerations. It goes without saying that planning for the inevitable eventuality of our own deaths is never an easy or engaging prospect. Very few people in the world will ever have to tangle with the legal repercussions of the interplay of sovereign grants and centuries old spanning trust funds when crafting their estate plan. However, we should heed from the Queen’s example of meticulous planning for the eventuality of her death.

No matter how large or small our estates may be, we all must take care and be vigilant to ensure that our own estate plans position our loved ones or beneficiaries to probate our estates with a minimum of legal burdens and obstacles. During such difficult and trying times emotionally, and potentially financially, the last thing that any of us would want is to inadvertently put our loved ones in a compromising and embattled position to legally take the assets that we have left for them. One often overlooked aspect of estate planning is the care and custody of the original executed last will and testament document itself. You can work with your attorney to craft an impeccable will, but if your beneficiaries do not have access to the document at the time of your death, your estate planning efforts can be severely compromised.

In Texas, upon a testator, or person who has a will’s death, the executor of the estate must file an application to probate the estate with the probate court of the county of the decedent’s residence. In order for the application to be granted and probate of the estate to begin, the original executed last will and testament document must also be submitted to the probate court. If the original will cannot be filed with the probate court, the Texas Estates Code imposes additional burdens on the application to begin the probate. For example, the applicant will be required to evidence to the probate court all of the following: reasons why the original will cannot be produced, full contents of the will, and contact information and relationship to the testator of not only each beneficiary under the will, but each person who would inherit assets of the estate in the event there was no valid will.

The last required element of identification of these intestacy beneficiaries is often the most troubling. Texas law provides for intestacy beneficiaries in the absence of a decedent having a last will and testament. These are persons designated by the legislature to take the assets of a person’s estate if the decedent’s wishes are not memorialized in a legally enforceable will. For example, in the event of the death of an unmarried man with two children who has no will, his estate would be divided evenly between his two children. While there are statutes covering a myriad of family composition types, suffice it to say, no one wants to leave the disposition of their estate to chance or the whims of the legislature. Moreover, often times testators have specific and good reasons to change the disposition of their estate from the statutory intestacy divisions to suit the character of their estate and relationship with their loved ones. For example, a parent may wish to leave a larger share of their estate to a child who was more involved with their end of life care or leave a bequest to a close friend.

If the original executed will cannot be located following the testator’s death, the intestacy beneficiaries must be informed of the situation. Typically are required to attest to the probate court all of the contents of the will as offered by the applicant. In some situations where all the beneficiaries are treated equally under the terms of the will consistent with the intestacy laws, this may be a perfunctory exercise. However, often there is an opportunity for a potentially aggrieved party to contest to the contents of the will as represented should they feel slighted by its content or otherwise is unable or unwilling to represent to the probate court the content of the testator’s will. Such a scenario can lead to a will contest and encumber the estate and its beneficiaries in protracted and expensive litigation that can burden loved ones financially, while being emotionally taxing and contentious at a time of great grief.

You can avoid the above complications by planning and communicating.  When creating your last will and testament, it is imperative that you write down a plan detailing where the document is stored once it is executed. You should communicate that plan to the appointed executor of your estate and/or beneficiaries so they can file the original document with the probate court if and when needed. Ideally, the storage location would be one where both yourself and at least one of the appointed executors or beneficiaries of your estate jointly have access to.

Examples range from safekeeping the document with your attorney, store in document lock box, inside a home or office safe, or even a bank safety deposit box at a bank accessible by your executor, administrator, or attorney. Whatever works best for you and your loved ones, take care to ensure that all relevant parties clearly understand where the will is located at all times.

The attorneys at Marcum P.C. can help you and your loved ones craft an estate plan, including a last will and testament, that suits the character and nature of your estate and ensures that your beneficiaries take your assets consistent with your wishes.

Gregory W. Marcum

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