Whenever I wrap up representation of a client and the documents are signed, the client heads home with the originals. I don't customarily store documents and the client is solely responsible for the safekeeping of them. I do give clients a few ideas on how best to store the Wills and Power of Attorney documents.
A home safe, lock box or
a locking file cabinet is usually fine for most people. Others may prefer to
keep them in a safe deposit box.
The question is: Should
you store your estate planning instruments, such as a Will, in a safe deposit box?
Keeping valuables in a home safe or lock box, while more easily accessible,
isn't guaranteed to be secure, due to the possibility of theft, fire, or water
damage. A safe deposit box is kept in a secure area of a bank, and its access
requires two people--the lessee and a bank employee--to open it.
However, it's important to note that the FDIC does not protect the contents of safe deposit boxes in the event something happens to it. Once in a great while, stuff inside a safe deposit box disappears.
If you do decide to rent a safe deposit box with the intention of storing estate planning documents, it is a very good idea to have another person registered as a joint lessee of the box. This is usually done by you and the joint lessee signing a signature card when the account is set up. The bank only allows those lessees to access the box and they will usually require them to sign in each time they access it.
Be aware that the joint lessee will have access to the safe deposit box at any time, so this should be a person you trust. Some banks may allow designation of a successor upon your death, preventing the other person's access prior to that time.
If the safe deposit box is registered solely in your name, the bank's rental agreement may state that only the personal representative of your estate may access it after you die. Here's the conundrum: the person nominated in your Will to be the personal representative must be officially appointed as the personal representative by the probate court. That can't happen until the Will is found and reviewed by the court, but the Will is in the box.
In this case, the personal representative of the estate or an heir can bring a death certificate to the bank and sign an Affidavit in Support of Search stating that the person believes the safe deposit box may contain a Will. The bank will open the box and examine the contents in the presence of the personal representative or heir. If a Will is found in the box, the bank employee will make a copy, then deliver the original Will to the probate court.
In the case of a "small estate" with assets less than $75,000 (and includes no real property), an Affidavit for Collection of Personal Property can be used. This affidavit can be used by a blood relative of the decedent, or a person with a "legal interest" in the property. The catch is that this affidavit cannot be used until at least 30 days after the date of death.
Make sure your family knows you have a safe deposit box, and that your estate planning documents are inside. If the key to the box cannot be located by your heirs or personal representative, the bank may have to drill the lock open, and the contents will be inventoried.
Health Care Directives and safe deposit boxes don't go together.
If you have executed a Minnesota Health Care Directive, give copies of it to your doctors and other health care providers as soon as you can. Many providers scan it in so that doctors and nurses can see it in your medical file. Make sure your health care agents have a copy, too. NEVER store your Health Care Directive in a safe deposit box. If something happens to you that triggers the Health Care Directive, and the document is not on file where you are being treated, your health care agent may not be able to get to the bank to access the document. Your doctors may need guidance quickly and the bank may be closed or far away.
It's a similar issue for documents dealing with your funeral arrangements, burial, cremation, etc., as those documents will be needed soon after your death. It's best to have them readily accessible to family members, i.e., kept someplace other than in a safe deposit box. Make sure your family members know where those are stored. Perhaps give copies to the funeral home or relatives who will likely be involved in making those arrangements.