Where to Store a Last Will and Testament

Only one-third of the people in this country who need a last will and testament have one. This article is written for those people. Once you have a will, the next task is to store it properly. The start of that process is to make sure that it’s the original that is being stored. In recent years I have had several probate estates where the executor could find a photocopy but could not find the original. I use water-marked paper and blue ink for signatures on the wills I prepare to make it easier to distinguish an original from a photocopy. Not all attorneys are so cautious, therefore every will should be examined carefully before it is stored to ensure that it is the original.

When an original has been lost and the testator has died, the executor who is probating a photocopy must overcome the statutory presumption that the original was destroyed as a method of revocation. When all of the legal heirs are signing a written consent to the probate petition and thus there is no opposition to it, that task is doable but it can be time-consuming. Additionally, the Georgia Probate Code requires that the petitioner obtain written testimony from the two witnesses to the will or explain why those witnesses are not available (e.g. they are dead or cannot be found). All of that work is going to delay the granting of the petition and will most likely add to the legal expenses.

The first thought of many people who are looking to store a will is to put it in a bank safe deposit box. That is likely to work if sufficient precautions are taken. The first problem is that a bank can deny access to a safe deposit box upon the death of an owner if no living person is listed in its records as an authorized owner or user. Next, there is the question of whether the location of the safe deposit box and the key to it are known to the family members.

There is an alternative that is possibly “the best of both of worlds.” If the original of the will is stored in a good place at home (as discussed below), anyone who owns a safe deposit box can put a copy of the will in the box with a note attached that provides the location of the original at home.

One lesser-known option is to go to the probate clerk of the county in which one is residing and deposit the will for safekeeping at the courthouse. A fee is charged for that service, usually around $15.00, and it should be done in person just to avoid the risk of the will being lost in the mail. The probate clerk normally provides a receipt that should be attached to the photocopy of the will that is safely stored in one’s records at home.

A safe or file cabinet at home is a common solution for storage of the will. In the case of a safe, the first question should be who in the family knows the combination or has access to the key to the safe. In the case of a file cabinet, a properly labeled folder for the will is a good idea.

Finally, a solution that is less frequently used is the will depository maintained by many, if not most, trust companies for wills (and trusts) in which they are named to serve as executor or backup executor, or as trustee. This is done at no expense to the testator and could be a wise precaution if there are controversial provisions in the will that might motivate a family member to destroy it after the death of the testator.

When someone takes adequate precautions it is more likely that the first “inheritance” to the surviving family members will be an orderly and less expensive probate process.