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!
The rich and the famous who died without a Will and what a mess it was!
What do Prince, Jimi Hendrix and Aretha Franklin have in common with people like you and me? More than you’d think! As many of us do, they neglected their estate plan and put off writing their Wills until it was too late.
You’d have thought these legendary stars, who generated millions in revenue, would have planned to safeguard their estates. Unfortunately, they never wrote a Will, died intestate and left their estates down at heel.
Here are a few famous artists who failed to plan:
- Jimi Hendrix (Nov 27, 1942 – Sep 18, 1970)
American rock guitarist, singer and songwriter, Jimi Hendrix died without a Will and his estate was battled over for more than 30 years. Following his father’s death, Hendrix’s siblings were left behind, still fighting over the large estate.
- Bob Marley (Feb 6, 1945 – May 11, 1981)
One of the pioneers of reggae, Jamaican singer and songwriter Bob Marley’s estate continues to bring in a significant revenue even though he passed away from cancer in 1981. Bob Marley had been advised to write a Will, but because of his Rastafarian faith prohibiting him from recognizing his mortality, he never did.
Dying intestate, he left behind decades of lawsuits and claimants of his estate, which was estimated to be worth about US$30 million when he died.
- Prince (June 7, 1958 – April 21, 2016)
Prince died without a Will and his estate remains unsettled, with none of his family able to receive a penny. Sadly, his estate has already, and still is benefitting others – Princes’ estate remains in the hands of state-appointed lawyers and executors who have already collected over US$5 million in fees and expenses!
- Aretha Louise Franklin (March 25, 1942 – Aug 16, 2018)
With great surprise “The Queen of Soul” American singer, songwriter, pianist and civil rights activist Aretha Franklin put off writing her Will until it was too late, leaving behind an estate worth US$80 million, and four sons and other family members guessing at her wishes. Her intentions could have been carried out quicker and with less fuss, had she written a Will.
- Salvatore Phillip “Sonny” Bono (Feb 16, 1935 – Jan 5, 1998)
Most well-known for his song I Got You Babe with his second wife Cher, songwriter, television star and politician Sonny Bono, too neglected to write a Will before passing away from a tragic skiing accident in 1988.
Not having a Will complicated the star’s estate, as at the time of his death he left behind a wife, Mary Bono, and three children. Complications surfaced when ex-wife, Cher, and a “love child” made claims to Sonny’s estate.
- Amy Winehouse (Sep 14, 1983 – July 23, 2011)
Amy Winehouse, English singer and songwriter, known for her unique eclectic mix of jazz, pop, soul and R&B, sadly passed away at the young age of 27. Initially it was claimed that Winehouse had, impressively for her young age, an up to date Will, however probate records state the star died intestate. Winehouse may not have had a Will, but what she did have was an estate worth US$6.7 million!
In accordance with intestate law, Winehouse’s estate was passed to her parents, leaving out ex-husband Fielder-Civil (who according to speculations Amy Winehouse still very much loved) as well as her older brother as beneficiaries. Dying without a valid Will, Amy Winehouse joined the list of many of the rich and the famous who neglected or procrastinated in planning their estate.
So why is it that these stars worth millions didn’t have a Will? One possibility is that – like many of us – they simply didn’t want to think about or face their mortality, but the simple truth is, we’ll never be certain!
It is, however, important to address the topic of death, and plan for the inevitable future, making sure that however little or much we have, our estates are distributed according to our wishes, and not decided by the laws of intestacy!
There is much we can learn from the famous – regardless of the value of your estate; whether you’re famous or not; dying without a Will leaves your loved ones with a lot more than just their grief to work through. The answer is quite simple –make sure you write a Will, and remember that writing a Will is not only for you but for the people you leave behind.
With assistance from our team, it does not have to be a complicated affair, and it will leave you and your loved ones with the peace of mind that everything and everyone is taken care of.
“Do we need a Will? Is our existing Will valid? Who will care for our children if we both pass away?
These are common questions, subjects that are tossed around at coffee mornings and dinner parties, and even on the flight deck of an aeroplane.” – Asa Wilkins, Phoenix Wills
Achieve peace of mind in writing your Will in Hong Kong and ensure that all of your assets and family are protected.
It’s a task that most of us know we should get around to but often put off. Writing your Will needn’t be a painful experience with our Phoenix Wills team as we strive to make the process as smooth and relaxed as possible for you.
The peace of mind comes from knowing that this small but very necessary and important job is finished and is well worth the time and effort to safe guard your future and loved ones.
Wills 101 written by Little Steps Asia
Little Steps Asia gives an introduction of what a Will is and the necessity of why it is we need to have one set up.
Why Little Steps loves it: “It’s important to sort out your Will for your family. Hong Kong based, Phoenix Wills can help you arrange it all. Wills, Enduring Powers of Attorney, Advance Medical Directives (Living Wills), Deeds of Appointment of Guardians, and they also offer safe storage of your Wills in their secure storage facilities…they make it easy, affordable, and offer top security too.”