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You hired an attorney to draft your will, and it is ready! So, now what? Who should keep the original and where? You have several options to consider, and we will explore the various pros and cons of each in this blog post.
You Keep the Will
There are several advantages to your holding on to your original will. For one, you can have the peace of mind that this important document is under your control. You do not have to worry if your attorney has moved offices or retired. If you move to another city or state, as many of us will in our lifetimes, you already have your original will with you and do not need to add the extra hassle of contacting your attorney to collect the document. You keeping your original will is just simple and easy.
Of course, there are downsides to keeping your original will. Most importantly, we all lose things! Especially during times of upheaval, like a move to a new house or an assisted living facility, items can be lost in the shuffle or accidentally purged in the process of downsizing. There are other possible downsides as well. For one, you might be tempted to make handwritten changes to your will over the years, which increases the risk that your will might be invalidated in its entirety by a probate court. Moreover, depending on where you keep your will, nosy relatives or possible heirs might discover its contents. And to keep your will truly safe from destruction and unwanted eyes, you may incur additional costs to invest in a bank safe deposit box or fireproof home safe.
A Note on Where to Keep Your Will
In deciding where to store your will, there are three main considerations: protecting the document from damage, knowing where it is located, and keeping the document confidential.
Attorney Keeps the Will
Given the possible risks of keeping you own original will, you might want to consider having your attorney keep the document. Attorneys generally have a lot of experience keeping records, and estate planning/administration attorneys often invest in the staff, systems, and infrastructure needed to safeguard documents like wills. In addition to their firm having a fireproof safe or bank safe deposit box, attorneys will often have procedures in place dictating and documenting when and how your will is accessed or moved. These additional protections can give you the assurance that your will is safe from inadvertent misplacement or destruction.
Additionally, having your attorney keep your will also encourages continuity because that attorney or firm will be contacted when you pass away. All things being equal, the attorney that prepared your will is best positioned to navigate the probate process for your estate.
There are several cons you might consider, though. Your attorney might leave their firm, retire, or pass away themselves, leaving your original will in possible limbo. Even with a developed document retention plan, if something changes with your attorney, you will have to decide whether to retrieve the document, have it follow the attorney, or leave it with the firm. Memories also fade, sometimes leaving you or your family members struggling to recall the name of the attorney or law firm that has the original. One note—if you have passed away and your family has forgotten who prepared your will, the Knoxville Bar Association will gladly contact our members to try and find that attorney.
Probate Court Keeps the Will
Another possible option is to file your will with the county probate office. Your original will is kept in a vault with limited access. There are usually small fees for this process and may be additional fees every time you want to access the will. In Knox County, you would bring your will to the Probate Division of the Chancery Court. They charge a $7 filing fee, and you can access your will during business hours with proper identification. This option has many of the safety and confidentiality benefits of having your attorney keep your original will.
The decision of where to keep your original will is yours, but we hope this blog post illuminates some of your options.
This post was adapted with permission from an article in the December 2020 DICTA, Volume 48, Issue 10, page 6, entitled “For There to Be a Way, There Must Be a Will” by O.E. “Sonny” Schow, IV of Woolf, McClane, Bright, Allen & Carpenter, PLLC. Check out the original article and more DICTA content on our website at www.knoxbar.org/DICTA.
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