Updated: Jul 14, 2021
This column first appeared in the San Antonio Express News on December 21, 2012.
Dear Mr. Premack: I just recently had my Will written by an attorney. I asked if he would store the original for me, and he said no. I am looking for other alternatives. A friend mentioned that her mother filed her Will with the county clerk’s office, figuring that if she lost the original, she could get a certified copy from them. Another friend suggested a safe deposit box. Do you have any preferences or suggestions? – S. H.
The original of your Will is a very important document. I don’t just mean that your Will is important, of course it is. What I mean is that the original document – the one you physically signed in front of witnesses and a notary for self-proof – has its own special legal significance when compared to a copy or even to a certified copy. If the original is missing after you die, the law presumes that you destroyed it as an act of revocation. Thus, preserving and protecting the original is an important legal issue for anyone who has made a Will (and everyone should make a Will!). So, where can you safely keep the original?
For many years, lawyers offered to store original Wills for their clients. The hope was that the family would find it necessary to hire the law firm for probate if the law firm held the original Will. Eventually, lawyers found out that in our mobile society holding someone’s Will is more of a liability than a benefit. Hence, lawyers generally ask their clients to retain the original of their own Will.
The idea of filing the Will with the county clerk has no merit. The clerk’s office, however, tells me that people do this all the time thinking that it is a safety net. It is not. This is what happens: the clerk must by law accept various documents for recording, and that includes notarized Wills. The clerk assigns a volume and page number to the filed Will and scans the Will into the public records (where deeds and other real estate agreements are the most commonly recorded documents). The original Will is then returned to its maker.
What was the effect of recording the Will? First, it is now literally a public record. Anyone with an internet connection can log into the clerk’s website and read your Will. All privacy is lost. Second, it is a permanent record. The Will cannot be withdrawn from the public record. So what happens if a few years later you decide to revise your Will, or even revoke it altogether in favor of creating a Living Trust? That recorded will remains in the public record, seemingly granting inheritance rights that you have legally withdrawn. It may be an invitation to court battle over your intentions after you have died.
Finally, recording the Will does not protect the original document. The clerk gave it back to you after it was recorded. If you lose the original, it is still presumed to have been revoked by you. Even a certified copy is just a copy, and the legal presumption of revocation still applies if the original cannot be found. You have gained nothing by filing the Will; conversely, you have lost all of your privacy.
The county clerk does offer a somewhat better alternative: for a small fee, they will hold the original Will in safekeeping. You do this through the probate clerk’s office, not through the clerk’s recording office. The probate clerk holds the actual original under seal and in confidence. If you decide to change the Will, you can retrieve the old Will and can place the new Will into safekeeping. When you die, the will is already exactly where it needs to be for the probate process to begin.
Your best options are to keep your Will 1) in a safe place at home (like a safe, special filing cabinet or a lock box), 2) in safekeeping with the probate clerk, or 3) in a safe-deposit box at the bank. If you choose the clerk or safe-deposit box, remember to have your nominated executor as a co-signer on the deposit agreement. If there is no co-signer, retrieving the Will can be difficult. If you allow a co-signer, retrieving the Will after you die is a legal right granted to the co-signer, who can then probate the Will.
Bonus information: Here is a guide to storing other legal documents --
Your Durable Power of Attorney. This may be needed by your Agent if you become ill or need assistance. Under Texas law, a copy is as effective as the original. Consequently, keep the original in a safe place (your home lock-box, storage drawer, or a safe-deposit box) and provide your Agent with a photocopy. Let your Agent know where the original is kept in case of need. You are also allowed to file your Durable Power of Attorney with the County Clerk's office, but doing so makes changing the document more complex.
Your Medical Directives. This will be needed by your Agent if you become ill to the point that you cannot make you own medical decisions. Under Texas law, a copy is as effective as the original. Give a copy to your Agent and all alternate Agents. Give a copy to your primary care physician. Keep a copy in your home and in your automobile. Do not put the original in a safe-deposit box, in case your Agent needs it on a weekend or after banking hours. This includes both your Medical Power of Attorney, your Directive to Physicians, and your Out-of-Hospital DNR.
Your Living Trust. If you have a Living Trust, treat it like your Will. Keep a copy available in your home, give a copy to your successor Trustee, but put the original somewhere very safe (like your home lock-box, storage drawer, or a safe-deposit box). You may be required to give a copy to your bank and broker as well. However, do not file your Living Trust in the property records of your County Clerk. Those records are public, and your trust contains many private instructions.
Your Community Property Survivorship Agreement (CPSA). This must, by law, be recorded with your County Clerk (and in each county where you own real estate). It is a public document. Keep the original with your other real estate documents relating to your home or with your Will. Let your Executor know that the CPSA exists so that, when you die, the Executor knows to take advantage of the procedural shortcuts allowed by the CPSA.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, December 21, 2012