Dear Mr. Premack: My father has been organized and proactive. He properly probated my mother’s Will when she died so that he is recognized as full owner of all of their assets. He spoke with his lawyer about documents necessary to protect himself should he become disabled or die and signed his Will and Durable Power of Attorney. I am named as his Agent and Executor. My question is: where should he store these legal documents for utmost safety and easy accessibility? – R.T.
Each legal document is very different – they will be used at different times, for different purposes, and are based on different statutes with different requirements. Hence, let’s examine each one to make a recommendation.
The Will: The actual original of an individual’s Last Will and Testament must, by law, be presented to the court at the time of probate. If the original of the Will cannot be located, the law presumes that it was revoked before its maker died. (There is a difficult way to overcome that presumption and use a copy of the Will, but safekeeping the original is a much better approach). The original Will should be locked away – in a safe deposit box at the bank or in a safe or fireproof lockbox at home. The person named as Executor should know where it is located and should have a method to access the original when its maker has died.
The Will should NOT, however, be filed with the county clerk’s public records. First, filing the Will exposes its private contents to the public (public records are available on the internet). You do not want any curious web surfer to read the very private instructions that are in your Will. Second, if you file the Will and later change your mind, making a new Will with new instructions, the old Will cannot be “unfiled”. The old Will remains a public document and seeing how you changed your mind could cause hurt feelings among those whose shares of your estate have been reduced or eliminated.
The Durable Power of Attorney: Almost all financial institutions will require that the original Durable Power of Attorney be presented by the Agent when the Agent has a task to complete at that financial institution. If the original cannot be located at that time, the Agent’s authority is likely to be rejected. A plain photocopy does not have the same effect as the original and may not be accepted by third parties. In that case, the maker’s financial affairs may go untended, or the family may need to file for an expensive and intrusive guardianship. Those results are undesirable.
For a few short years (1989-1992) Texas law required that, in order to be valid, every Durable Power of Attorney had to be filed with the county clerk. The law was changed to make filing mandatory only when the document is used for a real estate transaction. Even so, people are now living longer and moving more often, and sometimes just mistakenly lose their legal papers. Thus, it is advisable that Durable Powers of Attorney be filed with the county clerk in case the original is lost or destroyed and the maker has become too ill to sign a valid replacement.
After it is filed, the maker should make every effort to retain the original in a safe, secure location, and should inform the agent of the location of the original and of the fact that it has been recorded with the county clerk. When it is time to use the Durable Power of Attorney, the Agent should locate and use the original. But if the original is lost (but not revoked) the Agent will be able to obtain a certified copy from the county clerk (which has the same effect as the original). Further, if the Agent is working with an out-of-state bank or broker that wants to see the original, the Agent should never send the actual original to them. Instead, the Agent should obtain a certified copy and send it instead.
Your father’s attorney should have also recommended that he sign a Medical Power of Attorney and a Directive to Physicians. The law behind these documents states that a photocopy is just as effective as the original when it is time to use the documents. Thus, the originals should be kept in a safe or lockbox at home, where the Agent can reach them at any time. But the originals should never be left with the doctor or medical facility; a photocopy should always be presented to them for their records.
Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington, and handles estate planning for all ages, probate law and business entity formation issues. Submit estate, probate, elder law and LLC questions at www.premack.com
This column first appeared in the Express-News on July 7, 2014.