Check Your Will

Be sure to carefully proofread your will. Does page nine follow page eight? If you are leaving percentages of your estate to different people, do the percentages add up to 100?

Executing the Will

After you’ve drawn up your will, there remains one step: the formal legal procedure called executing the will. This requires witnesses to your signing the will. In all states, the testimony of at least two witnesses is needed as proof of the will’s validity. In some states, the witnesses must actually show up in court to attest to this, but in a growing number of states, a will that is formally executed with the signatures notarized (and a self-proving affidavit attached) is considered to be self-proved and may be used without testimony of witnesses or other proof, assuming there is no conflict about the will, such as a will contest.

Who should you pick to be your witnesses? The witnesses should have no potential conflict of interest--which means they should absolutely not be people who receive any gifts under the will, or who might benefit from your death. You needn’t bring them with you to your lawyer’s office; typically, some employees of your lawyer will witness the signing. The witnesses will watch you sign the will and then sign a statement attesting to this. (Your lawyer may ask you to sign every page of the will as a safeguard, but not all lawyers require this.)

Where to Keep Your Will

You want your will to be found. If it’s hidden, it may stay hidden.

In states where only the original of your will is valid, it’s not a bad idea to make a few unsigned copies of your will and have them available for ready reference, but to avoid confusion, you should sign only one original. This--and only this--is your legally valid will. Keep it in a safe place, such as in a fireproof box at home (you can buy one at an office or department story) or your lawyer’s office. Some jurisdictions will permit you to lodge the will with the probate court for a nominal fee, but in some places, that makes the will a public record. If privacy is paramount for you, you should ask your lawyer or the probate office how best to accomplish this.

You should also keep a record of other estate planning documents with your will, such as a trust agreement, IRAs, insurance policies, income savings plans such as 401(k) plans, government savings bonds (if payable to another person), and retirement plans.

What if you lose your will? Have your lawyer draw up a new will as soon as possible, and execute it with all the necessary formalities. If your family situation, state of residence, or income hasn’t changed, your lawyer should be able to use copies of your lost will as a guide.

While many people keep their wills in their safe deposit boxes at a bank, in some jurisdictions the law requires those boxes to be sealed immediately after death, until the estate is sorted out. Needless to say, if your will is inside that box--or your cemetery deeds and burial instructions--sorting things out might get pretty complicated. If you do keep it in a safe deposit box, make sure to provide that someone else (and certainly the executor you name) can get at the will when you die. Tell your executor and your beneficiaries where the will is located, and make sure your executor, or someone you trust, has authority (and a key!) to open the box after your death. Many estates have gone through long probate delays because the bank didn’t have permission to let anyone open the safe deposit box except the person who had just died. If you name a bank as executor or co-executor, deliver the original will to the bank for safekeeping.

It’s OK to store copies of the will in your home, clearly marked as copies and with a note indicating the location of the original. Use a fireproof box. You can also keep personal papers such as your birth certificate, citizenship records, marriage certificate, coin collections, jewelry, heirlooms, medals and so on there or in your safe deposit box. Financial records, like securities, mortgage documents, contracts, leases and deeds could also be kept in these boxes.

A Break for the Filing Challenged

Many of us just can’t keep track of things. That could be a real problem in states where only the signed original of your will can be admitted to probate. In some states, the law provides that a signed copy is acceptable if at least one witness sighs an affidavit sating that the copy is a true copy of the original

Trusts

What about a trust agreement? Unlike a will, a trust may have more than one original, in which case, there will be language saying something like, “This trust is executed in four counterparts, each of which has the force of an original.” Your trustee, successor trustee, and lawyer should each have a copy.

And every time you amend the trust, be sure to have the amendment in a separate copy so indicated and signed by you. Unless the amendment is a complete restatement of the trust (i.e., a complete reworking of the trust), attach an executed copy to each signed copy of the trust, if possible.