Tag Archives: wills

Safe Deposit Box: Best Place to Keep a Will?

A safe deposit box seems like the perfectly logical place to store a will and other estate planning documents. They are probably the most important documents we will ever have, so shouldn’t they be kept in the safest place?

But is it a safety deposit box the best place? Or should you keep it in a fireproof safe in your home? With your lawyer? The court? Or somewhere else altogether?

Although I mention it again below, this bears stating here at the outset and repeating: Whatever option you choose, make sure your executor knows what you did!

Safe Deposit Box

Although clients often instinctively want to put wills in a safe deposit box, many estate planning lawyers suggest not to keep a will or other important estate planning paperwork there.

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The problem arises with the fact that many states seal a safe deposit box when informed of the death of the owner, and a court order must be issued to request that the box be opened to search for the will. Although probate courts will generally issue this order “immediately”, in practice there is still a delay until the request is made to the court (or the court acts on its own) and the order is actually granted.

Documents that are generally allowed to be released include the will, any deed to a cemetery or burial plot and any life insurance policy for the named beneficiary. I mention below (by way of example) some basic information about two states, Connecticut and New York, although more complete and updated information may be applicable if and when it is needed by your heirs. Following this information is a discussion of other options for keeping your estate planning documents, such as with an attorney, with the court or in a fireproof safe in your home.

Connecticut

In Connecticut, there is a standard form to request that a safe deposit box be opened after the death of an individual (click here), which should be submitted to the decedent’s corresponding court of probate. The form may be submitted by a next of kin, spouse, or any person showing a sufficient interest in the presence of a will to obtain any will or cemetery deed in the safe deposit box. The court may also issue an order ex parte. In all cases, an officer of the bank must oversee the process and report back to the court.

New York

Surrogate Courts in New York have different forms depending on which court is issuing the order. (New York tends to be more complicated in many legal matters, unfortunately.) Here’s the form for Queens County, for example (click here). To its credit, New York has made it easier with a do-it-yourself program, called the Surrogate’s Court Safe Deposit Box Petition Program, to walk people through how to make the request (attached here). Among other documents, you will need to obtain a copy of the death certificate before making the request.

Bank Procedures

In addition to the above, a bank may have its own procedures, such as requiring Letters of Appointment, Letters Testamentary or Letters of Administration (each being a letter allowing an executor or administrator to act on behalf of the decedent’s estate) before allowing access to the safe deposit box.

As you can see, there administrative hassles involved (those discussed here and others) with storing a will or other estate planning documents in a safe deposit box. That said, for individuals who do not have another safe place to store a will or prefer the safety of a safety deposit box, it may be the best choice.

Lawyer’s Office

Another option is to keep a will with the attorney who drafted it. Again, this may or may not prove as easy as it sounds. For example, we had wills drafted by an attorney shortly after the birth of my first child. After five years the lawyer wrote to us stating that the originals would be sent back to us if we did not inform her that we wanted her to keep them. (But I thought she was going to keep them until we died?)

In addition, offices may move or close, and if you do not keep careful records, it may be difficult for your heirs to locate an original will when the time comes.

The Internet does help in this regard, but it is not foolproof. I represented a client recently who had drafted her first will many years earlier and wanted to update it, changing her executor and adding grandchildren as beneficiaries. We attempted to locate the attorney who had drafted the original will, even contacting a lawyer who had previously shared office space with him and sending out email blasts to estate planning attorneys who might have known him. The man was nowhere to be found. He had either retired or passed away himself. Needless to say, if my client had died without updating her will, her heirs would have only had a copy to submit to the court (that is more open to being contested and requires additional proof to be probated), not the original.

Finally, if the lawyer is not responsive for whatever reason, executors or others seeking to obtain estate planning documents from the attorney may also need to obtain a court order to compel production.

Again, a lawyer’s office may be the best place to store a will, depending on your circumstances. However, you should weigh all factors for and against before making a decision.

The Court

You can file your will with the court in many states, which is also a safe option, but this means that your will becomes an official document, not a private one. If you decide to change the terms of your will, you cannot get it back, so beneficiaries and former beneficiaries can see how their respective inheritances have changed (or been removed) during successive revisions. On the contrary, if a will is a private document, you can destroy the original and all copies, and would-be heirs who have fallen out of favor are none the wiser.

In addition, if you move out of the jurisdiction of the court, out of state or even out of the country, your court-filed will does not come with you. There should only be one original of your will (an inviolate rule, barring very specific cases of different wills covering different assets, such as an international circumstance). That means if you drafted a will while living in Westchester County, New York, and filed it with the Surrogate’s Court in White Plains, your executor and beneficiaries would need to obtain it from that court, even if you or they have since moved to Phoenix, Paris or beyond.

Fireproof Safe in Your Home

It may be, after considering other options, that you decide to keep your last will and testament in a fireproof safe in your home. This is often a good option, especially if you have a safe that cannot be remove from the premises by anyone seeking to tote off valuables. In that case, I would recommend keeping a copy of the will in a safe deposit box (clearly marked COPY, with instructions on where to find the original), in the unfortunate circumstance that the original is lost. Be careful not to create too many copies, since you may later revise important provisions of your will and do not want multiple prior copies floating around that a beneficiary with a reduced share tries to “prove” is your correct and valid last will and testament. This can happen even among otherwise friendly parties, such as children and grandchildren. Do your heirs a favor, and keep everything clean to mitigate potential conflicts.

The Freezer

According to the rumor mill, there may still be a few folks who actually store important documents in the freezer. I have never met anyone who did – maybe it’s a poor man’s safe? – but I certainly don’t suggest having a last will and testament shoved behind the frozen peas. Not only does it sound a bit too Sopranos to me (and James Gandolfini himself left a mess for his heirs), but the bag it’s stored in better be really, super waterproof in the event of a power failure.

Let Them Know What You Did

Regardless of the option you choose for storing your will, make sure that your executor(s) know what you did. The best estate plans only work if the right people know how to follow them and where to locate essential documents when the time comes.

Law Office of Anne Marie Segal is located in Stamford, Connecticut provides legal counsel to businesses and individuals in Fairfield and Westchester Counties, New York City and beyond. Ms. Segal’s practice areas include estate planning, business law, trademarks and related areas. Please visit www.amscounsel.com for more information.

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

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God Knows We Love Them

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Just about every new baby born in the U.S. – or at least almost every one whose “first pictures” I have seen in countless emails or Facebook postings – looks something like this. You see them in the ubiquitous, unisex blue and pink blanket and cap babies receive in the hospital. Over and over. That’s how you know it’s a newborn.

And then the differences emerge. Their eyes may be open or closed. They may be blonde, brunette, black-haired or bald. Boy or girl. Big or small. Whatever they are, God knows we love them.

I spoke with a friend this afternoon about preparing for her baby, due in June. They have the room ready. The crib is purchased. The curtains are pink. The baby registry is, well, registered. I wished her well, recalling that glowing gush of almost-mommyhood as if it were yesterday.

I also remember the first day I left my son with someone else, a family member. He was three weeks old, and I was gone for less than two hours. I was only about 1/2 block away from the apartment – we lived in NYC and walked everywhere at the time – and I dare near turned around and went back. How could I LEAVE him? The bond felt too strong, the break too fresh. Yet I knew that I needed to keep going forward. The job of a mother is to bring a child into the world and then little-by-little, day-by-day, prepare that child to be independent. We can’t keep them “in the womb,” as it were. As close as we feel to our babies, one day we have start the inevitable, growing separation. That’s a good deal of why they call being a parent the toughest job.

The same son I could barely leave that day is now nine years old. I leave him every day, or rather he leaves me (to get on the bus)…. He has been through two minor operations and countless aches, pains, bumps and sniffles. His younger sister, now six, is on a very special diet (as am I) due to celiac disease, which causes severe reactions after the most minuscule ingestion of gluten. We have become the gluten police. Yet, as the years have gone on, it has become exceedingly clear that I cannot protect my children from absolutely everything. Nor should I, lest they need protection themselves from a helicopter mom. The best I can do is intervene where I can and teach them to make their own way.

In my professional life, I think about these issues every day. As an estate planner, I have the same worries as every other parent and as many of my clients in their 30s and 40s with young children. What if I am not there to help them in life? What if the worst happens, the unthinkable, and their Dad and I don’t live long enough to see them through to adulthood? Back when I started college, my mother told me that for my entire childhood, she worried that she would live long enough to see me through high school. She was thankful to have been granted that wish. Years later but before I had children of my own, I said something about her joy that the worrying could subside at that point. “Are you kidding?” she answered. “Then I worried about living long enough to see you through college….” At some point, we parents can all stop worrying, but hopefully not for many years on.

Back to my friend, the one who’s expecting. A while into our conversation, I gently mentioned her that along with the bottles and blankets, she should consider which standby guardians to appoint for her soon-to-be-born child, in case the unthinkable happens. If she doesn’t plan ahead, and disaster does strike, the decision will be made by a court among a variety of contenders, not by her (and her husband’s) choice. It’s not a rush, hope against hope, but it is important.

We buy life insurance, car insurance, home or renter’s insurance and more. We have collectively come to realize that we won’t cause our home to catch fire by buying insurance. We are merely protecting ourselves and our families. We also need to look fate in the eye and realize that, even in our children’s early days, we need to prepare not only for that first day of separation, but also the last one.

Our children are our best presents in life and our sweetest Valentines. We gave them the gift of life, and we can also give them the gift of being prepared for what life may bring. After that, as I often tell my clients and friends, we can go back to enjoying them!

Because God knows we love them.

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This post is one in an occasional series about the interplay of legal practice and everyday life. Anne Marie Segal is admitted to practice law in New York and Connecticut. 

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The “New Normal” of Estate Planning

What has changed? Surprisingly little. And that has changed everything.

Now that Congress has made permanent the $5 million federal individual exemption (adjusted for inflation) for estate taxes and other provisions that take estate tax planning out of the picture for the vast majority of Americans, estate planning will look very different. Very. In fact, most of the esoteric planning that engineered tax breaks for the wealthy will still be employed, but the bar for who is “wealthy enough” to need estate tax planning has just been raised significantly.

At the end of December 2012, it was widely assumed that the $5 million individual exemption could drop to $1 million, or at least $3.5 million. Alternatively, there could be another “stop gap” extension and a need to vote again, leaving us with continued uncertainty in the estate tax arena. Yet instead, Congress surprised everyone and enacted permanent provisions that are more generous than anyone anticipated.

As a brief summary, here’s where we are on the federal estate tax front:

1) The $5 million per person exemption was extended, which will continue to be indexed for inflation.

2) The top rate increased to 40%, effective 1/1/13.

3) Portability remains in place (a post-mortem election you can take to preserve the first spouse’s exemption).

4) The $5 million gift tax exemption remains in place.

You can also check out my YouTube video from January 2 for the same summary:

Now that you know this, for the foreseeable future, many of you can simply tune out federal estate tax planning altogether. Wow. How often do lawyers say that? Tune it out? Almost never, I can assure you. But in this case, you probably can do just that. Big caveat: If you do have an estate approaching the thresholds or expect an inheritance or other infusion of cash that may put you there – lucky you! – of course, perk your ears back up and take notice.

If you would like further commentary about the new estate tax laws and their effect, take a look at luminary estate planner Martin Shenkman’s article from Financial Planning entitled: Tax Deal a Game Changer for Estate Planning.

Anne Marie Segal is admitted to practice law in Connecticut and New York and provides estate planning and other legal counsel to businesses and individuals. This information is provided for your convenience and does not give legal advice for your situation. You should consult an attorney for advice if you have questions about what type of estate plan is right for you. State estate taxes, divorce/remarriage concerns (present or future) and other factors may also affect your decisions about estate planning.

 None of the interactions on this site form an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

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Holiday Newsletter – December 2012

Click on the snowman for a full copy of my
Holiday Newsletter

May you have a restful holiday season.
 
Feliz Navidad! 
Joyeux Noel! 
Fröhliche Weihnachten!

and 
Happy Hanukkah!
Chanukah Sameach!
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