When a loved one passes away or is determined mentally incapacitated, it is crucial for the personal representative, executor, trustee, or agent under a power of attorney to have access to the individual’s estate planning documents. These are essential in order to understand the party’s wishes, be able to administer the estate, or handle other necessary tasks. But what happens if you are unable to find a loved one’s documents?
Is a Copy Good Enough?
In California, the law provides that every heir is entitled to a copy of the will and trust. Unfortunately, that doesn’t always happen. You may even have a copy of the document, but not the original. Although a copy gives you good information, it is very difficult to probate a will with just a copy. Legally, the presumption is that it was either destroyed or revoked if the original is not available.
It’s important to speak with an estate planning attorney to understand whether your copy of a document is sufficient to move forward and what your alternatives are.
Tucked Away Documents
Unfortunately, it is not altogether uncommon for people to have estate planning documents drawn up and fail to tell others where the documents are. Some elderly individuals may even have these documents tucked away in a filing cabinet or even an obscure shoebox with other vital documents such as a birth certificate and social security card. When you are trying to locate the estate planning documents of a loved one, there are many places where an individual may have put them for safekeeping.
Home Safes and Lockboxes
One place where people commonly keep these kinds of documents is a lockbox or personal safe. These areas are typically safe from fire or flooding and common places for an individual to keep important records. A safe is easily found as it will need to be in a place large enough to accommodate it. A lockbox may be kept in a home office, file cabinet, or bedroom, but some individuals keep them in areas that are not usually accessed, such as special drawers and even attics.
With the Drafting Attorney
The attorney who drafted the documents often keeps originals, signed copies, or digital copies for the people they do estate planning work for. If your loved one had an attorney, there may be correspondence, a business card, a checkbook entry, or a line item on a bank statement somewhere in their belongings.
Once you contact the attorney, however, it’s important to understand that he or she may not be able to release any information to you unless you are named as a trustee or executor. But the attorney may, upon learning of the death, then notify the person named in the will or trust. If an attorney is reluctant to discuss details with you, you may need to get the assistance of a closer immediate family member to intercede.
The Executor or Trustee
Although the drafting attorney may not have the original, he or she may have a hard copy or digital copy that can give you clues to who is named as the executor of the estate or trustee. The originals may have been given to this individual. A copy may be sufficient in the case of a trust, but the original will should be obtained for probate. Contacting the person who is named executor or trustee may be a clue.
A Safe Deposit Box
In the past, it was standard practice for individuals to keep important legal documents in a safe deposit box at a financial institution. Keeping documents in these boxes offered a sense of extra security and safety for these people. Unfortunately, unless access instructions to the box have been given to someone, you may need to get a court order to get access unless the box is in the name of a trust.
Last Resort
If no one is able to locate estate documents for your loved one, you may have to proceed as if there aren’t any. In the case of a loved one who has been determined mentally incapacitated, family members will need to proceed with establishing guardianship for that individual. If the loved one has died without a will or trust, they will have died intestate, and the court will then appoint a representative and handle the probate process. Unfortunately, this can be a time-consuming and frustrating process but a necessary one.
Estate administration can be complicated and the laws confusing, but you don’t have to figure it out alone. To schedule a consultation with our office, contact us at (925) 831-4840, serving San Ramon, Danville, Dublin, Pleasanton, the Tri-Valley and Bay Area.