It’s springtime and for many of us that means it’s time for spring cleaning! But what happens when your spring cleaning goes a little too far and you accidentally throw away your original estate planning documents? It’s always best practice to keep your original estate planning documents, but if you have a copy isn’t that enough? In Arizona, it depends on the document.
Powers of attorney
If you accidentally throw out your original powers of attorney (whether durable financial or medical) you are probably ok, so long as you have a copy. Most financial institutions will honor a copy of a power of attorney. Similarly, most medical practitioners only need to see a copy of a healthcare power of attorney.
In fact, if you know you are prone to losing documents, you can even provide your banks, financial advisors, and healthcare providers with copies of your powers of attorney so that they have them on file. That way, these institutions will already have the documents they need in the event it becomes necessary for your agent to act on your behalf. Just remember, if you update your powers of attorney later, you will need to provide the updated version to each person you share it with.
Trust
Like with powers of attorney, if you have misplaced your original trust, you should be fine. So long as you have a copy of the trust, the trustee can still administer a trust estate. The trustee will not need to provide the original trust in order to fulfill their obligations as trustee. Nor will they need it to collect and distribute assets to beneficiaries.
Will
A will is where it gets tricky. If you accidentally lose your original will, it will be more difficult for your personal representative to administer your estate. Under Arizona law, if an “original will that was last seen in the possession of the testator cannot be found after the testator’s death, the testator is presumed to have destroyed the will with the intention of revoking it.” This presumption can be rebutted with evidence that the original will was lost or accidentally destroyed rather than revoked. So, if you’re will is missing, you may want to leave some evidence that you accidentally misplaced your will. A signed and dated note that explains you accidentally threw away your original will in a spring cleaning frenzy and did not intend to revoke it, could be of use to your personal representative.
Even if the court determines that the will is valid and you did not revoke it, the court still has to determine that the copy is true to the original will. If the original will is unavailable the contents of the will must be “proved by a copy of the will and the testimony of at least one credible witness that the copy is a true copy of the original.” Your estate can still be administered using a copy of the will rather than the original. It is just more work for your personal representative.
So, now what?
Best practice is to keep your original documents somewhere safe but accessible. If you already lost the originals, you may be able to get by with just copies. If you want to make things easier for your agent, trustee or personal representative, consider getting an estate plan update. In getting an update, you can create new originals. Just try not to throw them away this time.
One Response
“If you already lost the originals, you may be able to get by with just copies”? The client in that situation should only “consider” an estate plan update?
In my view, if a client has lost his original estate planning documents, whether through “spring cleaning” or otherwise, the only appropriate course of action is to re-execute the documents quickly as possible. Of course, the documents should be reviewed to make sure there are no changed circumstances that warrant a revision.
To make a deliberate decision to rely on a copy of a lost will when the client is alive and competent and can execute another one is imprudent. While it may be possible to admit the copy, that will require a formal probate. At a minimum, a formal probate will result in delay and additional expense. Also, since notice of the petition for formal probate will have to be given to the intestate heirs (including any who are disinherited or diminished by the estate plan), the chance of litigation over the validity of the estate plan is increased. If ancillary administration is required, the other state may have more onerous procedures applicable to the re-establishment of a lost will. If the client is capable of signing a note that mentions a “spring cleaning frenzy,” he can just as easily execute new documents and make life much simpler for all concerned.
In at least one other state, if real property is transferred by means of a power of attorney, title underwriting standards require the original power of attorney to be recorded immediately behind the deed of conveyance. A notary cannot make a certified copy if he has not examined the original.