The Importance of Original Estate Planning Documents: “The Wet-Ink Still Matters”

The importance of keeping track of your original estate planning documents was hammered home to me early in my career by a story I heard at an “estate and trusts round table” for young lawyers.  The presenter that day was a seasoned and successful practitioner that we all aspired to emulate.   I was at that awkward place in my career where everyone around me assumed I knew what I was doing, but I was not yet convinced.  So, I took every opportunity to soak in as much knowledge as I could from the veterans.  The story he told was simple, but compelling, and I have adopted it as my own on many occasions when trying to explain to my clients the importance of keeping track of their original estate planning documents.  Here’s how I remember it:

I was once engaged to handle what promised to be a simple estate administration.  The decedent, we’ll call her Greta, was the quintessential grandmotherly widow—always smiling and sweet.  She had three children—two daughters and a son—and a gaggle of grandkids.  She loved them all.

Greta and her late husband had been successful ranchers in eastern Arizona and they had made wills that left everything to their three children.  However, after her husband passed, Greta conveyed over half the ranch property to her son as an advance of his inheritance.  As part of this transaction, she prepared a new will that provided only for her two daughters.  She had good legal counsel when she prepared her will and there was no question about her intentions or competency.

As it turned out, the son was not as good a rancher as his father had been; soon he had mortgaged the land to cover his losses.  A few years later, he lost the ranch to the bank.  When Greta finally passed, the main assets were her home and what was left of the ranch property.  Her daughters found a copy of Greta’s will in her desk drawer, right where she said it would be.  It had a sticky note on it where Greta had written “my originals are in my deposit box.”  The daughters were unaware of any “deposit box.”  Was it a safe deposit box at a bank?  If so, there was no bank identified and no key to be found.  Was it a safe or strong box somewhere on the property?  If so, the daughters had no knowledge of it.

The daughters contacted me for assistance.  I assumed that we would find the will and the administration would be simple.  I made inquires of every bank in town, but there was no safe deposit box anywhere in Greta’s name.  The family made a diligent search of the property, but they were unable to find a safe or strong box.  In the end, we never found Greta’s original will.  So, instead of a simple administration, I had a full blown formal probate on my hands with only a copy of the will.

Not surprisingly, when we petitioned the court to probate the copy, the son objected.  He argued that because the original could not be found, the law presumes that the decedent  destroyed and revoked it.  In that case, the prior will, which left him a third of the estate, would be controlling.  Unfortunately, he was right.  Of course, I knew that the presumption could be overcome, but only if I could clearly show that Greta had not revoked her will.  Think about that for a second . . . the standard requires you to prove a negative!

To make a long story short, we litigated that case for over a year.  In the end, we prevailed, but the legal costs were significant and the daughters’ share of the estate was greatly diminished.  More importantly, the family relationships were destroyed, even between the daughters, one of whom favored settling with the son.  The law of estates and trusts is old-fashioned.  The wet-ink docs still matter.   You and your clients should be careful to keep track of them.

So, if you don’t do anything else this month, send me a note and tell me where, exactly, you keep your originals.  Don’t leave us searching.