Safeguard your estate planning documents

By Joseph L. Raad

All too frequently, clients call this law firm asking for a copy of their Will or other estate planning document because they cannot locate the original.

My first response is to tell them that if they cannot find the original document, they really don’t have a Will. This is because in South Carolina, only a document bearing the original signature of the testator and witnesses can be submitted to Probate. A photocopy is not an original, nor is an electronic version such as a fax or scanned copy.

Here are a few questions and answers you can use to safeguard your estate planning documents and ensure they are ready and accessible when, and if, they are needed.

Where should I keep my legal documents?

This question comes up often and I wish I could offer a tried-and-true answer. The best advice is to keep the documents somewhere safe from fire and theft, yet readily accessible.

Some clients choose to keep them in a bank safe deposit box or a strong box at home, although I have had clients tell me they keep their legal documents in the freezer.

If you choose to keep your documents in a bank safe deposit box, there is a state statute that allows a person in the descendant’s family (i.e., spouse or adult descendant) or person named as a personal representative in a copy of your will, to access the contents.

Does the lawyer who prepared my legal documents have my originals?

When I started practicing law in 1982 many lawyers retained their clients’ original documents and gave the client a copy for their file. This is a very rare practice today. If your Will was prepared in the last twenty years or so, there is a good chance the drafting lawyer does not have your original documents. Contact the drafting lawyer as soon as possible if you do not have your originals to retrieve them and place them in your safe.

Is my Will recorded?

In South Carolina Wills are not “recorded.” They are “filed” with the court after a person passes away. On the other hand, your power of attorney should have been recorded when it was signed (if not, please have this done). Your health care power of attorney is not recorded.

In closing, please take special care of your legal documents, as they are your legacy. You likely spent a lot of time and money to have these documents carefully planned and prepared; to lose them and not have your wishes honored is a true misfortune.

Joseph L. Raad is Senior Counsel with Morton & Gettys Law Firm in Rock Hill, SC. He is a Certified Specialist in Estate Planning and Probate Law.

Information or interaction on this page should not be construed as establishing a client-attorney relationship or as legal advice. For advice about your specific situation, please consult one of our attorneys.