What If I Can Only Find a Copy of a Will or Estate Planning Document?

After a loved one passes away, family members often begin searching for important estate planning documents. They may know that a will or trust was created, remember discussing it, or even find a photocopy or digital version on a computer.

But what happens when the original signed document cannot be found?

This situation is more common than many families realize. While some attorneys (like The Law Offices of Joseph D'Urso) retain original estate planning documents for their clients and provide duplicates, many law offices provide only the originals to the client and maintain only electronic or photocopied records.

If a court, financial institution, title company, or another party requires an original document, having only a copy can complicate matters. What happens next depends on the type of document, the circumstances surrounding the missing original, and applicable state law.

What Happens If the Original Will Is Missing?

A missing original will can create significant issues during probate.

When an original will cannot be located after someone's death, the question may arise as to whether it was simply lost or accidentally destroyed, or whether the person intentionally revoked it.

In some circumstances, a court may accept a copy of a will when the original cannot be found. Doing so, however, may require evidence establishing that the copy accurately represents the deceased person's valid final will and that the original was not intentionally revoked.

Relevant evidence could include testimony or records from the attorney who prepared the will, statements the deceased person made about their estate plan, or evidence explaining how the original may have been lost or destroyed.

For example, if important documents were destroyed in a fire or flood, those circumstances may help explain why the original will cannot be produced.

The situation may also be easier to resolve when all interested parties agree that the copy represents the deceased person's final wishes. When disagreements exist among heirs or beneficiaries, establishing the validity of a copy can become considerably more complicated.

If a copy cannot be accepted as the person's valid will, the estate may ultimately be distributed according to the state's intestacy laws rather than according to the instructions contained in the copy.

Financial Powers of Attorney

A financial power of attorney allows someone you choose, known as your agent, to handle certain financial and legal matters on your behalf.

Banks and other financial institutions may have specific requirements before recognizing a power of attorney. Depending on applicable law and the institution's policies, an original, certified copy, photocopy, or electronic version may be requested or accepted.

If the original cannot be located and a copy is not accepted, additional legal proceedings could potentially become necessary before another person can manage the individual's affairs.

Keeping the original power of attorney in a secure but accessible location can help avoid unnecessary difficulties if your agent needs to use it.

What If the Original Trust Cannot Be Found?

Trust documents can present different issues than wills.

A trust generally does not go through probate in the same manner as a will. When an original trust agreement cannot be found but a reliable copy exists, it may still be possible to administer the trust using that copy, depending on the circumstances and applicable law.

When the beneficiaries and trustee agree that the available copy represents the most recent version of the trust, resolving the issue may be relatively straightforward.

Problems are more likely when family members disagree, multiple versions of a trust exist, amendments are missing, or someone questions whether the available copy is actually the final version.

In a disputed situation, it may become necessary to ask a court to determine which document governs the trust. Obtaining a judicial determination can also give a trustee greater certainty before making distributions or other important decisions.

Medical Powers of Attorney and Healthcare Directives

Copies of healthcare documents are frequently used because a patient's records may need to be shared among hospitals, physicians, specialists, family members, and other healthcare providers.

Documents may include:

• Healthcare powers of attorney

• Advance healthcare directives

• Living wills

• Other instructions concerning medical decision-making

Copies of these documents are often sufficient for practical purposes. However, questions can arise if there are conflicting documents, uncertainty about which version is most recent, or disagreements among family members or healthcare providers.

In a serious dispute, determining the validity of the document may require additional legal review or court involvement.

The Best Solution Is Preventing the Problem

Even as estate planning becomes increasingly digital, properly executed original documents can remain extremely important.

After completing an estate plan, originals should be kept somewhere protected against loss, theft, fire, and water damage. Just as importantly, the people who may eventually need those documents should know where they are and how to access them.

A secure location might include a fire-resistant home safe, safe deposit box, or another protected storage location. The right choice depends on your circumstances, but accessibility should always be considered. A perfectly protected document does little good if no one can locate or access it when it is needed.

It is also helpful to keep organized digital copies for reference while clearly identifying where the originals are stored.

Can't Find an Original Estate Planning Document?

Finding only a photocopy or digital copy does not necessarily mean that there are no options. The appropriate next step will depend on the type of document, why the original is missing, the available evidence, and the law that applies to the situation.

The Law Offices of Joseph D'Urso can help families understand their options when an original will, trust, power of attorney, or other estate planning document cannot be located.

If you are dealing with a missing estate planning document or want to make sure your own documents are properly organized and protected, contact The Law Offices of Joseph D'Urso to discuss the next steps.