Who Should Have Copies of My Estate Planning Documents?

“Who should we give copies of our estate planning documents?”

Almost invariably, we are asked this question by our estate planning clients at some point during our work with them.  The answer is “it depends”.  It depends on the documents you have signed.  It depends on where you are in life.  And it may even depend on which estate planning attorney you talk to.

What is The Biggest Concern?

Clients may amend their documents in the future.  Unless the document at issue is an irrevocable trust, a client can change their will, living trust, or powers of attorney.  The client can change whom they bequeath their estate to, who will be in charge of managing the estate or trust, and who will be their power of attorney.  There is often a desire to give the folks nominated as Personal Representative or power of attorney a copy of the document.  Clients feel peace of mind that nothing will come as a surprise if the folks named in that document suddenly need to act.  But once copies of the document are released, the proverbial genie is out of the bottle.  If the client makes changes in the future, what reassurance will the client have that all copies of the prior version of the document have been retrieved?

Different Planning Attorneys Disagree

I am fond of telling clients that they may ask 3 different estate planning attorneys this question and they may get 5 different answers.  Attorneys are often shaped by the experiences of our prior cases in the advice that we give.  As an estate planning attorney who also litigates contested estate matters, I recognize that I may approach this question from a more cynical point of view.  I have seen too much litigation arise over amended documents that oftentimes an individual had no business seeing, to begin with.  Admittedly, my position may therefore be more conservative than other attorneys.

But It May Depend Upon the Document and the Person Receiving the Copy

That being said, I do not suggest to my clients a blanket approach to never give a copy of their documents to anybody.  For example, I suggest to my clients that a primary care physician probably should have a copy of the client’s Health Care Power of Attorney (Advance Directive) and Living Will amongst the client’s medical records.  If the client works with a financial planner to manage investments, I suggest that the planner should have a copy of the financial power of attorney and living trust (if applicable).  The good news is that if the client does change these documents, it is easy to reach out to the medical provider or financial planner, pull the existing document, and replace it.

It May Depend Upon the Client’s Age and Other Factors

Does the client already rely upon the person named in their power of attorney documents for assistance with medical and financial issues?  Is the client likely to need to use the power of attorney in the near term?  Is the client of age or condition such that any further amendment of the documents is unlikely?  If the answer to these questions is yes, our advice to the client may weigh in favor of providing a copy of the documents to their power of attorney and others.  Prompt access of the agent or executor to necessary documentation in the short term may outweigh concern about future changes to the document.

What Do We Usually Advise?

We most frequently advise our clients to follow the “Hansel and Gretel” approach, in honor of the Grimm fairy tale where young Hansel and Gretel laid a path of pebbles to help find their way out of a deep abandoned forest.  We advise our clients to store their documents someplace safe.  Alert the folks named within those documents as power of attorney and executor that you have completed your estate planning and where the signed documents can be found.  In other words, lay the path of pebbles to the documents.  Alongside the power of attorney or will, maintain your list of current financial information.  This will ease the work of the power of attorney or executor once they need to act.  And if you update your document in the future, destroy any superseded documents, store your new documents in a different location, and consider advising the folks named in the original document that they should stand down.

But What’s The Final Answer?

It depends!  It depends upon our client’s age and medical conditions.  It depends upon how much our clients already rely on the assistance of others.  It depends upon how much our clients feel unwavering trust in the folks named within their documents to promptly return the document if changes are made in the future.  We often remind clients that if they couldn’t trust someone to honor an instruction such as “return all copies of my power of attorney”, perhaps that individual shouldn’t be in the document in the first place!

For more information about anything regarding your estate planning, whether you are beginning the process or want to revisit your existing planning, contact Jeremy Rachlin at (301) 656-1177 or jrachlin@bulmandunie.com.