Preparing a Last Will and Testament is an important part of planning for the future. But signing a Will is not the last step.
Just as important is making sure that the original Will can actually be found when it is needed.
At Carey & Stewart, we occasionally receive calls from families who know that a loved one had a Will, but cannot find it. In other situations, the family has a photocopy of the Will, but no one knows what happened to the original.
Those situations can create unnecessary complications at an already difficult time.
Why Does the Original Will Matter?
After a person dies, his or her Will generally must be presented for probate so that the estate can be administered according to its terms.
In West Virginia, the law specifically contemplates delivery of the Will to the appropriate county clerk or to the executor named in the Will, who can then offer it for probate.
For that reason, locating the original signed Will is highly preferable. When the original cannot be located and only a copy remains, additional legal issues may have to be addressed before the estate can proceed.
The better approach is to avoid that problem in the first place.
Your Executor Is the Person Who Will Need Your Will
There is a simple point that is sometimes overlooked when people prepare their estate plans: You will not be the person looking for your Will when it is needed. A Will provides instructions for how a person’s assets are to be distributed after his or her death and identifies the person chosen to carry out those instructions. That means it is ultimately your executor – not you – who will need to locate the original Will and present it for probate.
You do not necessarily need to give your original Will to that person today. But your executor should know that you have a Will, where the original is located, and how to obtain it when the time comes.
A Will stored somewhere that no one knows about may cause almost as much difficulty as having no Will at all. For example, storing your Will in a safety deposit box at a bank – your executor or executrix will not be able to get into the safety deposit box unless his or her name is already on the account.
What About an Older Will?
There is another important consideration when preparing or updating your estate plan: tell your attorney about any prior Wills or codicils you have signed.
Do not assume that an old Will can simply be forgotten because you have decided to make a new one.
West Virginia law provides specific ways in which a Will may be revoked. A properly prepared new Will will commonly include language revoking prior Wills and codicils. Depending upon the circumstances, additional steps may also be appropriate to make clear that an older original Will is no longer intended to have any effect.
That is especially important if copies or original versions of an earlier Will may still be in the possession of family members, a former attorney, or someone previously named as executor.
When meeting with an attorney to prepare a new Will, let the attorney know about every prior Will or codicil you remember signing and, if possible, where the originals and copies are located. Your attorney can then advise you on the appropriate steps to revoke and dispose of the prior documents.
Simply putting the old Will in a drawer and hoping no one finds it is not an estate plan.
A Few Simple Steps Can Prevent Problems Later
Once your estate planning documents are completed:Keep the original Will in a secure location where it can be located after your death.
- Tell your executor where the original is kept and how it can be accessed.
- Keep track of who may have copies of your Will.
- Tell your attorney about any previous Wills or codicils when preparing a new estate plan.
- Follow your attorney’s advice concerning the proper revocation and disposition of prior Wills.
- If you move or change where your important documents are stored, make sure your executor knows.
Estate planning is intended to make matters easier for the people you leave behind. Taking a few additional steps after signing your Will can help accomplish exactly that.
Carey & Stewart, PLLC assists individuals and families with estate planning and probate matters in West Virginia. If you have questions about preparing or updating a Will, or about administering the estate of a loved one, feel free to contact our office to discuss your situation.