What to do with a will once you've written it

Sam just signed his last will and testament. He is planning to leave his estate equally between his two children. One lives in Calgary and the other in Winnipeg.

His lawyer asked him where he planned to store the original copy. Good question.

There are a variety of popular and not-so-popular places where you can store a last will and testament. The three most popular places are in a safety deposit box at the bank, in a safe or other fireproof receptacle at home, or at the lawyer's office who helped you draft the will. There are pros and cons to each.

Storage at home creates a fire risk. The will and the will-maker can both be consumed in the same tragic house fire. A fireproof box can be purchased wherever office supplies are sold. It will be ranked to protect the contents for a certain length of time. The better the ranking, the better the protection. A fire that is hot enough, and lasts long enough, will eventually incinerate the contents of the box but it still amounts to a good level of protection. Do not worry about theft -- the box does not have to be locked. The contents can be replaced if the box is stolen.

The big risk to home storage is not fire or theft. The majority of wills that are destroyed or damaged are done so at the hands of the owner. A person signs a will, stores it at home and then accidentally destroys it. That can be the result of senility, or simple inadvertence, but it happens with surprising frequency.

The safety deposit box at the bank is safe from fire. It is less likely to be inadvertently destroyed or mangled. The chief objection to storage at the bank is the idea that it might be difficult to get to the will when the time arises. That objection is overrated. The banks are willing to let next-of-kin search the box if they show up at the counter with a funeral director's certificate of death. If the will is in the box, and the person at the bank is the named executor, then the bank allows the executor to sign for the will and take it away. The bigger problem is this: The family may not know there is a safety deposit box at all, or where it might be. The key there is to let everyone know. Memories are short. Thus, a memo is better than a conversation. Copies of the memo should be given to the family and to the executor.

Storage at the lawyer's office is still popular, although it is becoming less common. It is safe from fire. It is safe from marauding and senile clients who would mutilate the will by accident or by mistake in judgment. Again, a memo should be generated and circulated to let everyone know where the will is to be found. Lawyers store wills without charge as a rule. They do so because they want a chance to handle the legal work in connection with the estate. They often charge a tiny fee for the will in the hope they will have the chance to charge a larger fee downstream after the client passes away. The executor is not obliged to employ the lawyer who drafted the will, but the lawyer gets the chance to make a pitch to get the work.

There are other less popular and, generally, less wise places to store wills. Many people store their wills in the freezer with the Popsicles and chicken. Why? Freezers are fire-resistant in some measure if the house is burning down. Still, while that might be true, it is a horrible storage location. It the last place people will look when searching for the will. After the chicken and Popsicles melt in the fire, the will might be a sticky mess. A judge has to read through it if it is put to probate.

Sam ultimately opted to store his will at home. He bought a fireproof storage box at an office supply store. He told each of the two children, and his lawyer, where to find the box. He plans to leave it unlocked -- the key is glued into the keyhole on the front of the box. Problem solved.

Sam is real. Details in this story have been changed to protect his confidentiality.

John E. S. Poyser is a Winnipeg lawyer with the Wealth and Estate Law Group. Contact him at 204-947-6801 or jpoyser@inksterchristie.ca

Republished from the Winnipeg Free Press print edition September 19, 2012 B5