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 last will and testament 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
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will cannot be withdrawn from the public record.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 clerk’s office 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.