May 30, 2014

What's the best way to safeguard your signed, original Florida will?

When you pass away, your original, signed Florida will must be submitted to the Florida Probate CourtA copy of your will is NOT automatically legally valid. That's why it is essential that you know the location of your original signed will at all times. Your personal representative (executor) and  key family members should also know where it is and how to access it. 

What happens if your original will cannot be found when you pass away? In that case, the Florida Probate Court will presume that you have intentionally destroyed the will. Any beneficiaries under your will who are now "cut out" could then sue to prove that the will was simply lost, not intentionally destroyed. On the other hand, your intestate heirs - i.e., the individuals not necessarily named in your will but who may now stand to inherit your assets as a matter of Florida law  - will no doubt hire lawyers of their own to try to prove that you intentionally destroyed the will.

Lawsuits like this are usually contentious and costly, taking a psychological and financial toll on your beneficiaries. If the intestate heirs prevail, your assets will be distributed according to Florida intestacy laws, not necessarily according to your desires. Your intended beneficiaries would then be cut out... all because the original will could not be found! 

The question then arises: What's the best way to safeguard your original, signed will so that it can be found when it's needed? Should your lawyer keep it? Should you? Clients ask me this all the time. Experience has shown me that the typical client (and his/her beneficiaries) is better off retaining control of the original will rather than leaving it with the lawyer. Here's why:

It is likely that a long period will elapse between the date you sign your will and your death. In the intervening years, your lawyer may relocate, pass away, merge practices, retire, change phone numbers. As the years pass you and your family may even forget who is holding it; or you may create a new will with a different attorney. We get calls all the time from people trying to figure if we have prepared their relative's will, and if we have it in our files. (We don't.) 

If you need more convincing that you are the best person to safeguard your own will, let me share an experience I had several years ago. The court appointed me "inventory attorney" when a local attorney passed away. This means I was in charge of cleaning up and resolving the deceased lawyer's pending client matters. In going through his office, I discovered over 3,000 of his clients' original wills in a back room safe!  Some had been signed decades before. My staff and I embarked on the herculean task of finding the owners. We mailed certified letters, checked phone records, contacted the tax appraisers office, checked death records, etc. After several months of effort, we still had 2,300 unclaimed wills. In the end, the court ordered me to destroy the wills. Have the owners done new wills? Will their wishes be honored when they pass away? There is no definitive way of knowing.

Here's another example: Several weeks ago I had the son of a deceased lawyer come to see me. His father retired in 1990 and passed away in 2002. The father's widow had remained in the family home until 2013, when she moved to an assisted living facility. While cleaning up the house to prepare it for sale, the kids discovered in a back closet a carton containing over 100 original wills that their late father had been holding on behalf of clients. They dated back as far as 1965. I assume when he retired he attempted to reach the clients, but was unable to. Now I am assisting the family in trying to determine the status of these wills and the people who wrote them. Fortunately, the family acted responsibly when they found the cartons and recognized that their father would not have wanted these documents trashed, and are attempting to pursue the rightful owners of these wills.  

If for some extenuating circumstances you still want your attorney to hold your original will and if he/she agrees to do so, you should touch base with him/her every few years and keep him/her updated on your contact information. Give the attorney's information to your personal representative and key family members. If you go to a different lawyer to update your will in the future, ask for the prior lawyer to return your old will, so you can physically destroy it. 

Better yet, keep this important legal document in your own possession in a safe place, like a safe deposit box or a fireproof, flood-proof spot in your home.  Let your personal representative (executor) and key trusted family members know where it is, too, as well as how to access it. Hopefully no one will need it for a long, long time!

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