When You Really Need the Original
In this age of photocopies, e-mail, faxes, word-processing and pdfs, a signed original may seem old-fashioned. But sometimes you actually need an original signed document with a real signature. An original will is very important.
There is always only one original will. If you sit down at a table and sign 5 wills, only the last one you signed is your will. Making a new will automatically revokes all prior wills.
It is common practice to make photocopies of the executed will. Can you probate the copies if you can’t find the original? It depends.
There is a conflict between the policy of the law to carry out the decedent’s wishes as expressed in a will and, on the other hand, to protect against fraud. Since the person who made the will is no longer alive and cannot tell us what happened to the will and whether or not he or she destroyed it; the law takes special precautions.
When a will cannot be found, a presumption arises. A presumption is a rule of law by which finding of a basic fact gives rise to existence of presumed fact, until the presumption is rebutted. In the case of a missing will, the known fact is that the will is missing, which gives rise to the presumption that it was destroyed with the intention of revoking it. In order to have a copy of a will probated, therefore, the proponent of the will must adduce evidence to overcome that presumption.
To overcome the presumption, evidence must show that (1) someone other than the testator destroyed the will, (2) the decedent did not have access to it and, therefore, could not have destroyed it, or (3) that the decedent made statements up until the time of death that he had a will. The proponent of the copy of the will must also prove by the testimony of two witnesses that the will was executed by the decedent when he or she had testamentary capacity, a diligent search did not turn up the will, and the contents of the lost will are as presented in the copy. Providing actual proof of any of these circumstances can be very difficult and often impossible.
Since the original will is so important, where should you keep it?
I recommend keeping your will in a safe deposit box at your bank so long as no one has access to the box who could benefit by the destruction of the will. I recommend that you drive immediately from the lawyer’s office to the bank to put your freshly signed will into your safe deposit box.
In Pennsylvania, a decedent’s safe deposit box can be searched, in the presence of two bank officers, for a will. A will and cemetery deed can be removed. This is so even if no one else’s name is “on the box,” meaning that no one is designated as deputy or attorney-in-fact on the card maintained by the bank. Also, when the box is searched after death, an original will can only be turned over to the named executor, which provides some additional safeguards.
For clients who do not have a safe deposit box and do not wish to rent one, the will can be kept with other important papers at home. Most folks in this category have a safe, strong-box, or “fire-proof” box. I always caution folks that there is no such thing as “fire-proof” – these boxes are fire-rated to withstand high temperatures for a given period of time, say one or two hours, and this is often inadequate for a fire which stays hot long after it appears to be “out.” These boxes are nice little ovens.
If the will names a bank or trust company as executor and/or trustee, often the bank will offer safe-keeping services and hold the original document. This is also a good solution to the problem of where to keep the original will.
Some folks let the lawyer who wrote the will hold it in “safe-keeping” for them. This is usually a service provided by law firms at no charge. Sometimes the law firm’s motivation for offering the safe-keeping service is to make sure that the family has to come to that law firm to retrieve the original will and, thus, that firm gets first crack at the business of settling the estate. In fact, some lawyers just assume that is the case, taking over the estate settlement, and the executor and family members don’t even realize that they have a choice.
Whatever the law firm’s motivation for offering to hold your will, this could provide the needed safety. It is a good option so long as the executor and family members understand that the will is being held in safe-keeping and that the executor is free to interview other law firms and make an informed decision about what lawyer or law firm is going to be attorney for the estate. This gives the executor the opportunity to compare fees and the expertise of other lawyers before making a decision.