How important to preserve one’s original estate planning documents? Where should one keep these documents?

Let us examine how this applies to different types of documents.

A decedent’s original will is required to commence probate. Without the original it may be difficult to impossible to probate the decedent’s estate according to the terms of the missing will.

When the terms of a missing will can be established, such as through a copy or a duplicate original, then one may try to probate the lost will.

However, if the original was last in the possession of a deceased testator who was competent until the time of death, then the missing will is presumed to have been revoked by the testator.

Proper custody of an original will is, therefore, very important.

Keeping the original in a bank safe deposit box is a good approach provided someone has a key to the box or is named as a co-owner or co-signatory.

With a key to the decedent’s bank deposit box, the decedent’s death certificate, the key holder, upon identification, can access the safe deposit and take possession of any original will and trust documents.

A copy of the will must be left in the safe deposit box (along with the rest of the contents), the original lodged with the superior court in the county where the decedent resided at death and a copy mailed to the person named in the will as executor – all within 30 days of the decedent’s death.

A decedent’s original trust document (and amendments) is neither required to be recorded with any county nor required to be submitted to the court where the decedent resided at death, unlike a will. Nonetheless, it is best to safeguard the original trust, and all amendments.

Normally, the trust and will are kept together. The same applies to any original trustee affidavits and trustee resignations documents.

The original power of attorney to manage property, financial, and legal affairs must be maintained. The original is required to be presented for the power to be recorded at a county recorder’s office.

Other recipients may accept a certified copy of the original, but that process requires presenting the original document to a notary public or a licensed attorney for copying and certification.

Except for the county recorder’s office, the necessity to always present the original power of attorney can be greatly reduced by the power of attorney providing that an unverified photocopy is as good as the original.

If the power of attorney provides that it is immediately effective when signed, the original document should be kept safe against abuse until such time as its proper use is needed.

That is, one may wish to keep the original power of attorney with a trusted person other than the agent with instructions to provide the agent with the power of attorney in the event of the principal’s incapacity.

The advance health care directive or durable power of attorney is entirely different than the other documents. A photocopy of the complete document is as good as the original!

Originals to any real property deeds that have been recorded with the county recorder’s office should be maintained but can easily be replaced by a copy of the recorded deed obtained from the county recorder’s office.

Original bank and brokerage account statements should be maintained but can be replaced by certified copies from the relevant institution if lost.

Attorneys often prefer to give the originals of all these documents to their client for safekeeping, and to keep copies. Keeping original documents places a significant responsibility on the attorney.

The best course of action is to keep these documents, except for advance health care directives, in one’s safe deposit.

Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 870 S. Main St., Lakeport, California. Fordham can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .