Unfortunately, it is not uncommon for estate planning documents to be misplaced, lost, or accidently destroyed. Sometimes, it occurs prior to death and then, if everything else fails, the documents can be re-executed. More often, it is the fiduciaries of the deceased person who realize that the estate plan documents are not available. In some circumstances, this situation can be remedied.
Occasionally, the original documents are retained by the attorney who prepared the estate plan. Therefore, said attorney should be contacted to inquire whether the original documents are safely stored in their office.
In many instances, photocopies can be used as well. Consequently, the preparing attorney or even a trusted fiduciary should be contacted to find out if they have possession of photocopied estate planning documents. If photocopies are used, especially during a probate of a Will, additional steps might be required to prove the validity of the documents.
However, a lost Will is presumed revoked. If the original Will, or even a photocopy, cannot be located, it will be presumed revoked and its provisions cannot be applied to the distribution of one’s assets. Trusts and Wills are private documents that are not recorded anywhere. Therefore, without the actual documents, their content cannot be recreated.
The documents lost or destroyed during the lifetime of a grantor or testator can be recreated as long as the grantor or testator has sufficient capacity to participate in the estate planning process. A new trust or Will can be drafted and executed, wherein it is noted that any previously executed documents, such as the lost trust or Will, are being revoked upon the execution of the new documents. Even if the lost documents are later located, the documents with the latest date will control anyway.
When the estate planning documents cannot be located or recreated after the death of the grantor or testator, the involvement of probate court is likely the only option. Sometimes, if there are witnesses who can testify as to the content of the trust, and if there is sufficient evidence in general to establish the existence of the trust and its terms, the court may recognize it and distribute the assets from the estate to its intended beneficiaries, but not before requiring the trustee to perform due diligence searches that can be time-consuming and costly.
Important question when searching for the missing estate planning documents is whether the trust was properly funded. In other words, are the assets titled in the name of the missing trust? If the answer is yes, then searching for the missing trust is more than justified. If the answer is no, but the decedent also created, as part of the estate plan, a pour-over will that would allow assets to be transferred to trust from the decedent’s estate, then locating the trust document would allow to avoid probate. But if the assets are not in the name of the trust and there is no pour-over will, even if the trust document is later located, it cannot distribute assets that are not in its name.
Commonly, estate plans are created to minimize probate costs and effectuate the simple distribution of assets. But the decedent’s wishes can only be followed if the estate plan is available. If the estate plan documents are lost, not only the estate will likely have to go through probate, but it might not be distributed in accordance with one’s wishes. Therefore, the estate planning documents should always be kept in a safe location.
Natalia Vander Laan is an attorney in Minden.