A last will and testament does little good if nobody can find the document after you pass away. It is important to safeguard your signed, original will as it must be filed with a probate court in order to formally open an estate. As a general rule, California courts will not accept photocopies of wills.
Any delay in locating a will may produce significant complications for your estate. As an illustration, consider a recent California appeals court decision which is discussed here for informational purposes only. The case arose from a horrific 2009 murder-suicide that resulted in the death of Elizabeth Fontaine, her mother and Fontaine’s two small children. Fontaine left a will naming her cousin, Jennifer Hoult, as executor.
At the time of her death, Fontaine worked as an attorney at a prominent Los Angeles-area law firm. Hoult made several attempts to locate Fontaine’s will, which she believed the firm held for safekeeping. But it was not until 2013-four years after Fontaine’s death-that the will was found. (The law firm entered bankruptcy in 2011, and the trustee assigned to distribute the firm’s assets ultimately found the will.)
The will named Fontaine’s two deceased children as beneficiaries. Hoult still moved to probate the will, as there were creditors with potential claims against Fontaine’s estate. Those creditors included Fontaine’s estranged husband, who filed a rival petition seeking appointment as executor of the estate.
A probate judge rejected the husband’s petition and agreed Hoult had priority appointment as executor under the will. The Court of Appeal, in a June 25 decision, reversed the probate court’s order and directed the judge to conduct an evidentiary hearing on the husband’s objections to Hoult’s appointment. The litigation over Fontaine’s estate will therefore continue nearly five years after her death.
Safekeeping Your Own Will
Setting aside the husband’s still-pending objections, this case emphasizes the importance of locating a will in a timely manner. Normally, an attorney’s office is an ideal place for keeping a person’s will, and but for the bankruptcy issues faced by Fontaine’s firm, her will should have been located shortly after her death.
In lieu of keeping a will with your estate planning attorney, you might also consider a safe deposit box. The important thing to remember here is that your intended executor should have easy access to the box. Ideally, you would name the executor (and maybe your alternate executor) as a co-owner of the box. Otherwise, the bank may not release the contents of the box without a court order.
You might also keep your will at home among your personal effects. It is still a good idea to keep a will in a home safe or other locked and secure area that your executor or family can access when necessary. A will should be treated like any other important personal document, such as a passport or birth certificate.
Your estate planning attorney can advise you on all the best options for preparing and safekeeping your will. Contact the Law Office of Scott C. Soady in San Diego today if you have any questions.