A phrase most of us have uttered is, “Where did I put my __________”. The fill-in-the-blank usually involves something which is more frustrating than it is impacting, such as keys or glasses. But when it comes time to managing a deceased loved one’s affairs, facing questions such as, “Where did mom put her Will”, or “Did dad ever put together a Will or other estate plan”, can lead to some less than desirable consequences.
Quite often, a desire exists to keep the specific contents of an estate plan secret. Unfortunately, the desire to keep contents secret is often expanded to keeping the existence of an estate plan secret. Without knowledge of either the existence of an estate plan, or the location of estate plan documents, family members unable to locate a Will or Trust are often forced into relying upon Florida’s intestacy laws to direct the manner in which the property of a deceased loved one is distributed. The intestacy laws may or may not provide the same manner of passing one’s property at death as was intended under a carefully structured estate plan. Equally detrimental as having surviving loved ones questioning the existence or location of estate plan documents, is for the person who signed and implemented the estate plan to misplace original documents, or to place them in an unsecure location where they may inadvertently be discarded.
If an original Will is unable to be located, the application of such Will is generally disregarded, and, barring possible complications from discovery of a prior Will, the individual is treated as having died without a Will. Absent navigating a difficult and infrequently successful procedure to get a Court to admit a discovered copy of a Will, Florida’s intestacy laws will generally govern a deceased person’s estate when an original Will is not discovered. Say, for instance, one child has moved into the family home to care for an aging parent, and in recognition of such care, the homestead real estate was devised to that child in the parent’s Will. If the Will has been misplaced, inadvertently discarded, or otherwise not discovered, it will not be enforced, and through application of Florida’s intestacy laws, the homestead real property will instead now pass to all of the parent’s children, and not just the one intended. Similarly, when an individual implements a revocable trust as the primary means of distributing property on death, a “pour-over Will” generally accompanies that plan to catch any property which may not have been put into the Trust during life, and send it over into the trust on death so the trust’s dispositive provisions control. If the original Will is unable to be located, the terms of the trust never apply to property which was not placed in the trust during life and may now be subject to probate. Instead, Florida’s intestacy laws apply and may impose an entirely different plan.
The best estate plan is one which includes taking steps to maintain all original estate plan documents in a known, easily remembered, and secure location; and one which involves informing at least the individual nominated as personal representative or other fiduciary position in the plan of the existence and whereabouts of these original documents. These steps reduce the risks that a Will and any other estate plan documents are inadvertently lost or never become enforced because no one knows they exist or where they are located.
If you have questions concerning the manner of securing original estate plan documents, if you are confronted with handling a loved one’s affairs and are unable to locate original estate plan documents, or if you need other advice or counsel concerning probate or estate planning, at Bob Bible Law, we have the knowledge and over 35 years of experience to help you navigate these issues.