You might think that once you have signed all your estate planning documents, you’re done making hard decisions. There is, however, still one more decision you have to make: where are you going to put all the documents? That may not sound like a difficult decision, but it does require you to strike a balance between security and accessibility. You need a spot that is safe from theft, fire, flood, or other loss. But the documents also need to be somewhere in which your heirs and agents will be able to access them quickly when needed.
One location that people commonly select for this purpose is a safe deposit box. A safe deposit box can be a good choice, not only because it’s safe, but also because it’s one of the first places people would think to look for a will if you hadn’t told them where you keep it.
There can be one big problem, however. What if your bank won’t let your family members or representatives into your safe deposit box after you pass away or become disabled? If you haven’t let your bank know who, besides you, should be given access to the box, it might refuse to let anyone else in.
And while you may think that the person who you named to serve as your personal representative will be able to access your safe deposit box, putting a will there can create a “chicken or egg” problem. The personal representative needs the will in order to open the estate and get appointed as your estate’s representative by a court. But the bank may refuse to let that person open the box until after he or she has gotten the court appointment.
Colorado does have a statute that addresses this problem. CRS 15-10-111 requires a bank to give access to anyone who is “reasonably believed to be an heir at law or devisee of the decedent, a person nominated as a personal representative …, or the agent or attorney of such person for the purpose of determining whether the box contains an instrument that appears to be a will of the decedent, deed to a burial plot, or burial instructions.”
If the bank opens a safe deposit box in these circumstances and finds a will, the law requires the bank to submit it directly to the court in the county in which the decedent was living at the time of death (the person who asked for the box to be open can pay to have copies made for their own use). This is, by no means, a perfect solution. Note, for instance, that this statute doesn’t authorize your family members or personal representative to access other items in the box beyond the basic estate planning documents listed above. Also, if the person who needs to access the box doesn’t have a key, he or she will have to pay the bank to drill the box open.
If you are going to store your documents in a safe deposit box, make sure you talk with your bank about how your personal representative or trustee can access it. And wherever you decide to store your documents, be sure to let the people who will need those documents know where they are.
Figuring out a way to store your estate planning documents in a way that is both secure and accessible to those who will need them in an emergency can be tricky. We give all of our clients a free one year subscription to DocuBank, which provides secure online storage for your estate planning documents and anything else you may want your family to be able to access if you become disabled or pass away.
Although the custodian of your will is supposed to lodge the original version with your county court within 10 days of your death, you can use DocuBank to store not only a copy of the will, but also instructions on where to find the original. DocuBank allows you to name an electronic executor — someone who will be able to access your electronic files in an emergency. We think it’s a great service for our clients. Please contact us to discuss it in more detail.
And if you’re interested in learning more about estate planning in general, please attend one of our free estate planning seminars, which we offer regularly in the Denver area.