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Safekeeping of Wills

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You've made your will, and now you have peace of mind that your estate will be settled how you want. But you're not done yet.

A will has not done its job until it makes it into probate court. For this reason, it is imperative that you preserve the will until your death, and make sure it can be found to be used. A lost will is the same as no will. 

One of the most common questions people have after they sign their will is what should they do with it. This is a critical decision because the original is going to be needed in order to probate it.

Probating a will begins with an application filed with the probate court. Together with that application, you must file the will, and the original must be delivered to the clerk within three days of when the application was filed.

A will is not like a birth certificate, where you can get a new original issued. Once the testator lacks capacity or is dead, there is no way to make another one. While it is possible to probate a copy of a will, the law imposes additional requirements and there is no guarantee that the copy will be admitted.

So, you will want to store the will in a place where it is safe and can be easily found after your death.

Home

Most people keep their wills at home with their other important documents. Ideally, this will be in a place that is protected from theft, fire, flood, or other accidental damage. You should be careful if using a home safe to make sure someone else knows the combination to be able to access it. A location you may not have considered is a deep freezer; they well insulated and heavy, and able to withstand extreme conditions.

Bank

If your home is not secure, a safe deposit box at a bank offers great protection. Disadvantages of a safe deposit box include the cost of renting the box and difficulty accessing the box. You will want to make sure that someone else has access to the box after your death to avoid having to involve an attorney and the court. Regarding the cost, some accounts include the use of a safe deposit box, so make sure to inquire with your bank.

Attorney

Some clients store their will with the attorney who drafted it. If you do this, make sure to inquire about the measures are taken to protect your will and be clear about what will happen if the attorney moves, retires, or dies.

Clerk

Lastly, you can deposit your will with the County Clerk for safekeeping. Chapter 252 of the Texas Estates Code allows a testator to deposit their will with the county clerk of the county where they reside. This option offers similar features as the safe deposit box, but the fee is significantly lower. Currently, there is a one-time fee of $5. Again, you will want to make sure someone knows that the will has been deposited with the clerk, and identify who will have authority to withdraw the will on your death. Unfortunately, wills deposited with the clerk have the most chance of being forgotten. Depositing your will with the clerk for safekeeping is not the same as recording your will in the deed records. When the will is recorded, it is scanned and the original is returned. This is not recommended because it will make your will a public record.

Additional tips:

· Have copies readily accessible. The only times you should need the original is when you are destroying it because you made a new will or when it is being probated. For all other times, a copy should suffice. So, it is a good idea to have copies in a more accessible location.

· Make sure the original and any copies are easily distinguishable. This can be accomplished by signing the original in blue ink and marking the copies with the word "Copy." Also keep the original stapled or in its cover slip, and paperclip copies so more copies can be made easily.

· Finally, be careful about who knows where the will is. It is not uncommon for a will with unfavorable or controversial terms to conveniently get "lost" after certain people find it.

Next week, we'll talk about what to do if the will is truly lost or stuck in a safe deposit box. 

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