By Karen G. Jackson, Esq.

 

Should my attorney keep my original estate planning documents?

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No. You keep them. Do not leave them with the attorney. The Massachusetts Board of Bar Overseers has determined that original estate planning documents are safer in the hands of the clients than the attorneys. Unfortunately, when attorneys retire or relocate, it is difficult to locate and notify every client. Mistakes happen. In my own experience, I have seen law firms disappear or simply, for whatever reason, no longer have the original documents. It is perfectly acceptable to call the law firm holding your original estate planning documents and set a time to pick them up. Do not just drop in to pick them up because they may be stored off-premises. Call first.

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Where do I keep my original estate planning documents?

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I recommend that you go to a local hardware store and choose a fire-resistant box or safe. Some people go on-line and order a water- and fire-resistant sealable bag. Tell your beneficiaries where you keep the combination or key and give them any other instructions they will need to find your documents. I am not only talking about your Will. Keep your original Health Care Proxy and Power of Attorney in the box, as well.

The attorney will keep copies, but I also suggest that you give a set of copies to a trusted person to hold in a separate location. People often store a set of copies on a flash drive or other safe electronic back-up.

 

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What about a safe deposit box?

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I am not a fan of storing original estate planning documents in a safe deposit box. Upon death, the family member is unable to have access to the safe deposit box unless that person is a joint owner and has a key to the box. As people age, they sometimes fail to tell others where the key is kept and/or fail to add a new joint owner after the other joint owner passes away. On behalf of my clients, I had to petition probate court to obtain an order permitting me to wait at the box while a locksmith drilled it open to give me access. Court expense + Attorney’s attendance fees + locksmith charges = additional and unnecessary expense! I could only inform the judge that the Will was “probably” in the box and that the petitioner was “probably” the named Executor in the Will. It can be crazy.

Also, people usually do not want to wait until the bank opens to get to the Health Care Proxy, Power of Attorney, or Will.

 

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Is it OK to make “small” changes to my Will myself by crossing out and adding words?

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Never do that. You run the risk of having your Will voided in its entirety. Each state has strict rules governing the proper execution of Wills. See an estate planning attorney to make your changes.

 

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What about a do-it-yourself Estate Plan?

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With rare exceptions, I do not like DIY Estate Plans. Sometimes the forms are not properly updated after the law changes. Clients receive invaluable advice from an estate planning attorney regarding recommended documents and choice of agents.

 

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What about my pets?

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Most people leave side notes regarding the care and custody of their pets and do not need to address this in their Will. If you want to give money, for example $5,000 per cat and $10,000 per dog to the custodian of each pet, so state in your Will. For more serious money, pet trusts are set up.

 

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Upon my death, I want to leave a small sum of money to a particular person and over time I may change the amount. Do I have to keep changing my Will?

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No. You can set up a POD bank account holding the sum you wish to give, retaining total control over the amount of funds in the account while alive. When you die, your beneficiary can go to the bank with a certified death certificate and collect their inheritance from you.

 

 

Can I mark up my Power of Attorney?

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Never do that. This document typically must be signed in the presence of a notary. And, even if a notary watched you make those changes, it is most likely that the bank needing the Power of Attorney has rules prohibiting the use of a marked-up Power of Attorney. Do not risk it. Have an attorney make your changes.

 

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My Financial Advisor is asking me to sign their company’s Power of Attorney document even though I already have a Power of Attorney prepared by my estate planning attorney, what should I do?

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Go ahead and sign it. The new Power of Attorney typically addresses very complex financial planning assets. Having the company’s preferred document will help make things go smoother for your agents. Keep the Power of Attorney your attorney prepared for use in all other situations.

 

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Can I mark up my Health Care Proxy?

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Without an attorney, do not change your agents; however, it is OK to update an agent’s contact information such as address and telephone number.

 

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My daughter just got married and changed her name. Do I have to redo my estate planning documents?

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No. When you signed your documents you used her correct name at the time. For example, if your daughter uses your Power of Attorney stating her former name, the party requiring the signature may ask her for proof of her name change.

 

I did not remember that my daughter had changed her name after her divorce/marriage, and I used her incorrect last name in my documents.

No worries. You may be more comfortable to return to your estate planning attorney to correct the docs, but virtually always we can say “also known as” in any situation requiring a correction.

 

 

I just learned that my Power of Attorney person is skimming some of my money. What do I do?

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Revoke it by immediately shredding your original Power of Attorney document and notifying all people and financial institutions holding copies that you have revoked this document. Contact your attorney and immediately create a new Power of Attorney document with your replacement agent(s). If you wish to pursue this matter legally, you can contact the authorities in your region.

 

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My spouse, family member, or friend just died, and I am in charge. Do I have to probate the Estate?

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For decedent’s assets that were either in a trust, jointly owned with a living individual, or had a named beneficiary, no probate is required. Make sure the joint owners and beneficiaries receive their inheritance. The remaining assets must be probated. For a small estate you can probably probate those assets yourself. Contact the probate court in the county where the decedent resided at the time of death. For more complicated or larger estates, I strongly urge you to hire a probate administration attorney, especially if real estate must be probated.

 

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How do I revoke my estate planning documents?

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My preference: bring the documents to your meeting with the estate planning attorney and tell the attorney you wish to replace them. If an urgent situation requires you to immediately revoke one or more of your documents, you revoke by shredding them, as well as all copies wherever located.

 

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I have no one in my family I trust to serve as Executor, Power of Attorney, and/or Health Care Proxy. What do I do?

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Contact your nearest senior center. Some professionals serve as agents. This is better than not having estate planning documents.