Where to Store Your Estate Planning Documents – and where not to!
Have you created your Last Will & Testament? Yes, that’s great! Now, where to store it? Writing your Will is an important task but it’s not the last task on your “to-do” list before you can kick up your feet, sit back and relax.
Did you know? The number one reason for a Will to fail is that no one can find it! If your Will is not found and presented to the probate courts within a relatively short timeframe, the courts will assume you did not leave one, and declare that you have died intestate – leaving it up to a predetermined set of laws to decide who gets to inherit your estate. Don’t fall into this category by making sure that your estate planning documents are kept safe, but accessible!
Below are some pointers to keep in mind when deciding where to keep your Will and other estate planning documents:
Let Your Executor Know
First and foremost, wherever you choose to keep your Will, the most important task is to alert your executors to the fact that you now have one, and where it can be found. Your executors only have a relatively short time to find and present your Will to the probate courts – the timeframe varies from country to country, but a good rule of thumb is six months. Rather than sending your executors on a wild goose chase, or having them tear your house apart in a desperate search, let them spend the time to mourn you, and then figure out the next steps (which we will discuss in another blog post). Don’t forget to keep your executors up to date on any changes, especially if you decide to move the documents to a new location.
It makes sense to keep your Will close, so you can pull it out from time to time, and check that you’re still happy with it. There are a few reasons why your home may not be the best or most secure place for your Will, however – you may be tempted to make amendments by scribbles in the margin – this could invalidate the entire Will. It could also be that children found it and decided that the textured paper it is printed on would make for a great colouring surface – again, this could invalidate the Will. Finally, and possibly most important, if you and your Will were to perish in a fire, you would have passed away intestate, and your efforts to set up the Will in the first place would have been for nothing.
A Safety Deposit Box
If your home is not the safest place to keep your Will, then surely a bank safety deposit box will be. Indeed, however a safety deposit box is too safe! If you pass away, your safety deposit box and its contents form part of your estate, and therefore access to it is frozen along with your other assets. To gain access to your safety deposit box, your executors will need to present the bank with the Grant of Probate, proving that the courts have accepted them as your executors. A Grant of Probate can only be issued by the probate courts upon presentation of your Will, which is locked inside the safety deposit box – a catch 22.
With Your Executor or Family
Instead of keeping your Will at home or in a safety deposit box, considering the risks, you may decide that the best way to make your Will accessible to your executors, is by leaving the Will in their care. This would certainly mean that the executors had immediate access to the Will – but what happens if your executor accidentally loses your Will, or worse – what if you have a fallout with the person holding your Will for you?
Another concern here is that, whereas it’s important that people know that you have a Will and where it’s kept, it is no-one’s business what the Will says until the day you pass away. If you have given your Will to someone to look after, they may sneak a peak and find that they don’t like what they read, or they could even attempt to contest a later Will based on the contents of the earlier Will that they had read.
With your Will Writer or Solicitor
Most Will writers and solicitors will offer to store the Wills you have drafted with them for free, in the anticipation that they will then be involved in the far more lucrative probate process. However, most firms offer only that – the safe-keeping of your Wills, with no additional service of informing and staying in touch with your executors, or even yourself. What’s more, the ‘safe-keeping’ may not be guaranteed – how many stories we have heard about firms closing down and a whole career’s worth of Wills lost, because the staff or successor didn’t have up to date contact details of the clients, or – as in a recent case – the Wills that were in the care of the firm had been moved to a forgotten basement, and were only discovered years later – after several clients’ estates had already been processed under intestate law.
With Phoenix Wills
As we do not directly engage in probate, we do not expect a future income from dealing with our clients’ estates, and therefore do not offer a free storage service.
Instead, we focus on keeping your documents accessible but safe. A nominal fee covers an annual check-in with you to ensure that your Wills are kept up to date. In addition, we send an initial information letter to your nominated executors, as well as an annual reminder to each of them, reminding them of the location of your Wills. This means, by the time you pass away, maybe 30 years after signing your Will, it would have been a maximum of a year since your executors had last heard from us, and instead of trying to remember what you told them about the location 30 years ago, they would (hopefully) immediately know where to turn to in order to retrieve your documents and get the probate process underway, ultimately ensuring that your assets were transferred to your beneficiaries as quickly and smoothly as possible.
Choose the storage option that seems the most suitable for you.
Hong Kong is a transient place, with many of us moving frequently within the city or across the region, during our time here. Ensuring that your Will is safe, rather than risking it being lost in yet another move, is crucial. The physical location of your Will is nowhere near as important as it being easily accessible in the event of your passing, so even if you leave Hong Kong to move to another posting or return home, your Will can be kept in that one safe location, as long as your executors are regularly reminded of the existence and location of your documents.
If you do choose to store your Will at home, may we suggest that you invest in a fire- and waterproof safe, to protect your Will in the case of fire or flooding – or even the water cannons putting out a fire. And remember that your executors will need to know how to open the safe!
Because tomorrow is never promised- one of the most important things you can do for yourself and your loved ones is to write a Will and plan your estate. Estate planning laws differ internationally, however one rule that stands true is that if you do not have a Last Will and Testament, the Government will make one for you!
Without a Will, your assets and estate will be distributed according to the generic laws in your country of domicile – splitting your belongings between your next of kin; e.g. partner and children, and in some countries even factoring in parents or siblings.
What if this is not how you wish your estate to be distributed?
Well, this is one of the greatest reasons for and why it is important to write your Last Will and Testament- to ensure your exact wishes are carried out after you have passed.
Contact us to create your Will and have peace of mind that your estate is planned for and your family is well looked after.
For those doubtful of why a Will is necessary, we’ve put together a list of five good reasons Why You Need A Will?
A Will is a legally binding document that allows you to decide exactly how you’d like your estate to be handled and distributed after you have passed away. A Will puts you in control and allows you to choose who is entitled to benefit from your estate and what they will inherit.
Passing away without a Will, the laws of intestacy will decide who inherits your estate, which often could be against your wishes.
Appointing guardians to have parental responsibility of your children, if they are minors is one of the most important reasons why you’d need a Will. Any child under the age of 18 must have an adult who is responsible for them.
What were to happen if something happened to both parents? Absent a Will, if guardians are not appointed for your children, the family court would choose among family members to appoint your children to. For expats in Hong Kong, if no family members are present your children would be placed in an orphanage! It will then be upon the courts’ decision to decide who, if anyone, is best fit to care for them.
Having a Will allows you to appoint guardians you’d want to raise your children.
3 – Choose Executors
When choosing who will administer your estate make sure to appoint someone who is organised, that you trust and who is honest. The executors of your Will will make sure that all your affairs are in order, from bank accounts and bills to business affairs. Executors have an important role in executing your Will according to your wishes and thus, another important reason to have a Will- to ensure the wind up of your estate and affairs are left in good hands.
4 – Avoid Lengthy Probate
Even with a Will probate is no walk in the park and takes some time, as the purpose of probate is to administer your estate. Passing on without a Will, known as dying intestate, probate can be a nightmare as the court decides how to divide your estate without your known wishes! Having a Will speeds up the probate process and allows the court to administer your estate according to your wishes.
5 – Ease Grieving
Losing a loved one is an immensely difficult period. Wouldn’t you want to make grieving less difficult for your loved ones? Writing a Will avoids having loved ones to deal with lawyers and administration during a time of sadness.
Don’t let procrastination get in the way of having a Will. Avoid unwanted stress on your family and protect them during an emotional time. Talk to our team about will writing services and planning your estate in Hong Kong.