Guest post by Michael Merhar of Merhar Law, PLLC
You have done it! You stopped procrastinating, went to a wills and trusts attorney, had a will drafted, and properly executed it, ensuring your legacy is protected. Mission accomplished, right? Almost.
While most people know it is a good idea to have a will to make sure they can control where their property goes when they die, many do not give much thought to how they should store their will after they execute it. As a trusts and estates attorney, many new client meetings start with a line like this: “Mom always said she had a will, but now that she has passed, no one can find it, so what happens with her property?” Unfortunately, failing to store your will properly can lead to some serious unintended consequences, as a court may treat a lost or misplaced will the same as if there never was a will.
This article will explore the common ways to store a will and the potential benefits and consequences of each so you can make a more informed decision about how best to store your own.
First Things First: Does Anyone Know Where It Is?
The simplest way to avoid issues is also the most often overlooked: letting a trusted family member or friend know where the will is stored. It does not matter if your original will is with your family attorney or sandwiched between your couch cushions—if no one knows where to find it, it does not do you (or your intended beneficiaries) any good.
This is not something that you need to overthink. If you are storing your original will with the attorney who drafted it, give that attorney’s business card to the people you have nominated as the personal representative and successor (backup) personal representative of your estate and tell them to contact the attorney if anything ever happens to you. If your will is in a safe deposit box, write down the bank (including the branch address), box number, and where you store your key, and give that information to your trusted family members or friends. Storing it in a shoebox under some old clothes in the back of your closet? Tell someone! No matter how you store your will, if no one knows it exists or where to find it, it may be worthless.
One caveat here is that if you are storing your will yourself, you should make sure that the people you trust with its location do not have any incentive to “lose” or “forget” about it—if you are trusting one of your children with your will’s location but in the will you leave everything to charity, your children have a strong incentive to ignore the will if they would receive all of your property without it. In a situation like this, a trusted friend who does not stand to personally benefit in any case may be the best confidant.
Storing It Yourself vs. Storing It with Your Attorney
After executing your will, your next decision will be what to do with the original. Some estate planning attorneys (such as me) will offer to store the original will in their “vault” (usually, a fireproof and waterproof safe), either as a courtesy to clients or as a separate, paid-for service. This is often the simplest way to make sure your will is securely stored and that it will be delivered to the appropriate court after you pass away, so long as someone knows to notify the attorney of your death. If you instead keep the original will yourself, you have free reign as to how you store it, but here are some things to consider:
- The Presumption of Revocation
Under Florida law, if a testator/testatrix (the person who executed the will) is known to have had a will, maintained the original will themselves, and then it cannot be found after their death, the presumption is that the testator/testatrix destroyed the will with the intention of revoking it [1]. This means that the burden falls on the proponent (the person trying to offer the will to the court) to prove that the testator/testatrix did not intentionally destroy and revoke their will, but the deck is stacked against them by default. Generally, there need to be some very strong facts to support that something else happened, like a child dissatisfied with their share of the estate under the will may have gotten to the will first and hid or destroyed it [2]. However, at the least, this will require a court hearing, which will cost the estate time and money, and introduce uncertainty into the mix, which is usually what people are trying to avoid by executing a will in the first place.
The presumption of revocation is scary, but it only applies when the testator/testatrix stored their original will themselves. If their attorney stored the original and it was then lost or destroyed due to no fault of the testator/testatrix, the presumption does not apply. In these cases, Florida law allows an interested person to establish the terms of the lost will by either offering a “correct copy” (today, this generally means a scan or photocopy of the will [3]) and testimony of one disinterested witness (someone without a stake in the outcome [4]) or, if no correct copy can be located, the testimony of two disinterested witnesses [5]. The attorney who drafted and stored the will may or may not be considered a disinterested witness, and this largely depends on whether the will was lost or destroyed by something outside the attorney’s control, like a fire, flood, or theft, or whether the attorney just lost it. If the former, the attorney can likely either file an affidavit or offer testimony to prove the contents of the will; but if the latter, the attorney may be considered “interested” because he/she may get sued for negligence/malpractice depending on the outcome [6]. Either way, while it is never great when an original will is lost, there is a lower threshold to overcome when the will was stored by someone other than the testator/testatrix.
- Accessing a Safe Deposit Box
Safe deposit boxes seem like a great idea—an area only authorized people can access, stored in a secure location. However, even if you plan well and let trusted people know about where the box is and what is inside it, there are extra steps they will need to go through to access it after you pass. Depending on what is in the box, this can be a multi-step process that involves paying multiple court fees (not to mention attorney’s fees) and, since they will be at the mercy of the court, potentially much more time before the box’s contents can be accessed and removed. So, while safe deposit boxes offer much higher security than a shoebox, this security comes with tradeoffs.
- Accessing a Safe
A more accessible alternative to safe deposit boxes, safes are another common place to store a will. While accessing a safe after its owner dies does not have the same, specific court process associated with safe deposit boxes, safes pose their own issues. Does your trusted person know where to find the safe? The combination? If the safe has a biometric or other electronic lock, does the trusted person know where the backup key can be found in case the battery dies?
If no one can get into your safe after you pass, a locksmith may have to break into it. And if the safe belonged only to you, locksmiths may be hesitant to open it without seeing some sort of document that authorizes your trusted person to open the safe, such as letters of administration signed by a probate court judge. This would require beginning the probate process before anyone is even sure you had a will, which in turn could lead to the court having to backtrack if a will nominating a different personal representative is later discovered—wasted time and money that can be avoided with simple planning.
What to Take Away About How to Store Your Will
While there are near-limitless different ways to store your will, each has its pros and cons, and there is no clear right or wrong way. Each person’s circumstances are different, and some people may want to let their attorney keep their original will while others may want to closely guard it themselves. But whether you leave your will with your attorney or keep it in a jar above your bed, the most important piece of planning is free: make sure someone you trust knows where to look.
For further information, see the following resources:
If you have questions about how best to store your will or anything else related to estate planning or probate, consult with a local trusts and estates attorney to make sure you are not making an easily avoidable mistake.
About the Author
Michael Merhar is the managing attorney of Merhar Law. He focuses his practice on wills, trusts, and estates, helping clients in Gainesville and throughout northern and central Florida ensure their legacies are protected and navigate the probate process.
[1] See In re Washington’s Estate, 56 So.2d 545, 545 (Fla. 1952); Potts et al. v. American Legion Hospital for Crippled Children (In re Estate of Evers), 160 Fla. 225, 227 (Fla. 1948).
[2] See Washington, 56 So.2d at 546.
[3] See Smith v. DeParry, 86 So.3d 1228, 1233–1235 (Fla. 2d DCA 2012); In re Estate of Parker (Parker II), 382 So.2d 652, 653 (Fla. 1980).
[4] See DeParry, 86 So.3d at 1235.
[5] § 733.207, Fla. Stat. (2024).
[6] See DeParry, 86 So.3d at 1236.