Disaster Planning Includes Keeping Important Documents Safe
by Steven M. Jankower, Attorney and Counselor at Law Newsletter
The effects of Hurricane Katrina and Hurricane Rita have been widespread and catastrophic and have had a significant impact upon our region, even for those of us who were fortunate not to be directly impacted by the fury of these storms. The storms certainly heightened the importance of emergency preparedness and the need to take steps to make sure that not only our families, but our homes and precious possessions remain as safe and secure as possible.
The importance of keeping precious possessions safe includes not only valuable personal possessions, but also important documents. In particular, these storms have heightened awareness of the need to keep valuable documents such as original wills and durable powers of attorney in safe and secure locations so that they can be used effectively when the time comes that you need them.
It‘s Important to Keep Original Wills in a Secure Location
The most common type of will employed in Louisiana today is one known as a "notarial will". A notarial will must be executed in compliance with requirements of Louisiana law, and must contain certain specific characteristics in order to be accepted by a court. The original copy of a notarial will is particularly valuable because it is a "self-proving" document, i.e., it is not necessary to produce any evidence in the form of affidavits or testimony from individuals who witnessed the signature of the person signing the will in order for the will to be accepted by the court. If the will is executed in full compliance with the requirements of Louisiana law, the original document will be accepted by the court upon presentation.
The rules making notarial wills self-proving as described above only apply where the original will is available to be presented to the judge. Unfortunately, in some instances, family members are not able to find or obtain the original will that a deceased family member may have executed prior to death in order to be able to present it to the court. The original will may be lost, misplaced, or may have been destroyed because it was not placed in a safe and secure location. Under Louisiana law, under limited circumstances, a copy of the will may actually be admitted to probate by a court in circumstances such as this, though it is more difficult and expensive to do so.
Similarly, it is very important to keep an original power of attorney in a safe place until it is needed. Some banks, brokerage houses, and other financial institutions will not accept a power of attorney that is not an original document or a certified true copy of an original document. An original power of attorney, like an original will, should be kept in a safe and secure location until it is needed.
It’s Not Necessary to Record Your Will in Advance
Is it necessary to record original documents such as wills and durable powers of attorney? In the past, it was a common practice for individuals to record their wills in the clerk of court's office prior to the time that they died. However, once a will is recorded, it becomes "public record", meaning that it is deemed available to be examined by any member of the public who chooses to do so. Furthermore, most individuals update their wills at least several times during their lifetime, and a prior will that has been recorded may not even be deemed valid if it has been revoked by a will that has been subsequently executed. Thus, it is not necessary to record an original will with the clerk of court in order for the will to be valid.
Under certain circumstances, a power of attorney may need to be recorded. For example, if it is going to be used by an agent to acquire or sell real estate on behalf of a person who executed the power of attorney, it must be recorded in the parish where such property is located. There may be other circumstances in which it is advisable to record the power of attorney. Once again, where these circumstances do not exist, it is not absolutely necessary for the document to be recorded in order to be enforceable.
Where Should I Keep My Original Will and Power of Attorney?
What should you do with important and valuable documents such as original wills and original powers of attorney? Certainly, these documents should be placed in as safe and secure a location as may be available. A fireproof cabinet or safe at home may work in many instances, but such safes or cabinets may not be totally secure from fires that burn for a long period of time. More importantly, as we learned from Hurricane Katrina and Hurricane Rita, such cabinets or safes may not be secure from flood waters and high winds which can damage or destroy them.
Probably the safest place to keep important and valuable documents such as an original will and durable power of attorney is in a safety-deposit box at a convenient and reputable bank. These boxes have limited accessibility and are kept in vaults at the bank that provide security to the documents. Of course, placement of documents in safety-deposit boxes may limit the availability of such documents in the event of catastrophic storms such as those experienced in recent months, since many banks were closed for extended periods of time following the storms. However, safety-deposit boxes are probably the best option readily available to individuals for storage of important and valuable documents.
Don’t Place Your Family at Risk by Not Safeguarding Your Will and Power of Attorney
Wills and powers of attorney are among the most important documents that an individual will execute during his or her lifetime. If these valuable original documents cannot be located or kept safe for that moment when they are most needed, they will not be available and cannot be used. Don’t place yourself or your family at risk by not taking reasonable steps to safeguard and protect these valuable documents. One option is to check with your attorney to see whether these documents can be stored in the law firm's safety deposit box. Our office provides this as a free lifetime service to our clients when we prepare these documents. For more information and options for safekeeping of your will and power of attorney, please contact us.
E-mail: steve@jankower.com
Phone: (337) 289-1745
Website: http://www.jankower.com