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Where should I keep my will?

There are a lot of wills located in safe deposit boxes across the state of Texas. And as long as your beneficiaries (or heirs) know that you have a safe deposit box, and where it is located, then this is a great place to keep your original will. The Texas Probate Code allows representatives of a bank to let a spouse, parent, or adult child of a deceased person to search the safe deposit box for a will. They should remember to bring a certificate of death to the bank. And if a will is found, the bank can release it to either the named executor, or to the Court, after making a copy and obtaining a receipt. Banks are required to keep the copy of the will for four years. If a financial institution refuses to allow a search, then Texas Probate Code Section 38B allows a probate court to order a search of a safe deposit box. Under these circumstances, the court sends a representative who accompanies the bank representative and the person searching. If a will is found, it is then submitted to the Court. When a court order is used, it makes it highly unlikely that a will kept in a safe deposit box will be “lost” by a disappointed heir.

At one time it was common for attorneys to keep original wills with their business files, and give their clients a copy. I originally thought, cynically, that this was to ensure that the attorney who drafted the will also got a fee for probating it later. However, I have had enough of my own clients ask me to keep original wills to understand that clients also expect to benefit from this arrangement. I always refuse to keep the original will because I don’t believe doing so benefits the client. Attorneys die just like other people. They also move, retire, or change professions–and yes, lose things. And so what happens to client files? The most colorful experience I had with this was attempting to track down an original will where the attorney had been disbarred and then moved to Las Vegas. I found his old partner, who directed me to the attorney’s last operational office. The old landlord then told me that the attorney had skipped-out on his rent, and he had burned all the boxes and boxes of files the attorney left in the office. Needless to say we did not recover that will. Fortunately, we were able to give ample evidence as to what had happened to it, and the Court allowed us to probate it as a lost will. Do not leave your original will with your attorney.

Texas Government Code 118.062 provides that the County Clerk can charge you a nominal fee for keeping your will for “safekeeping filing.” A safekeeping filing is an ideal solution. Just keep in mind, few heirs know about this procedure. Therefore, if you do not specifically tell your heirs that your will is filed with the County Clerk’s office, they are likely to discover it only after giving up their own search, and hiring an attorney to file an expensive intestacy proceeding. If you move to a new county, there’s no need to re-file the will in the new county. However, heirs still need to know where you orginally made your safekeeping filing. As a practical matter, very few people file their wills with the County Clerk. This is largely because most are simply unaware of that option. Unless they change their policies, both Harris and Montgomery County current require the Testator to file their own will–in person. If you rewrite your will, you also have to go, in person, to get the old will out of safekeeping. However, the great advantage is that the Court now knows that your will exists (and if the County Clerk has gone out of business, then probating a will is probably the least of your heirs’ concerns).

A safe located within your home might also be a good place to keep your will, provided that it is large enough not to be easily stolen. A small safe will be a thief’s #1 target. The thieves will likely be frustrated after hauling away a heavy safe, and cutting it open, only to discover your personal papers. Nevertheless, their frustration will not get your safe, or your will, back. A filing cabinet is less likely to be stolen, but should only be used if it is both fireproof and floodproof. Another option available to almost everyone is the freezer. If you place your documents in a ziploc bag in your freezer they are somewhat fireproof, floodproof, and readily accessible as well as unlikley to be stolen. Of course, they are also easily disposed of by accident or intentionally, so if there is someone who is going to be unhappy with what you have written, you will want to choose a more secure option. You will also want to be sure and let your heirs know to check your freezer, as it is unlikely to occur to them on their own.

If you expect your will to be controversial, then I recommend best place to keep it is with the County Clerk. If you move to another location in Texas, then a copy may be filed with the county of your new residence. As stated, if the contents of your will will be welcome to everyone, than any place mentioned above will work, just let your heirs know which location you chose.

If you would like to see an attorney about either writing or probating a will in Harris, Walker, San Jacinto, Trinity, Montgomery, or Brazoria Counties, please contact my office at 936-435-1908 or 281-723-2791 for an appointment in either The Woodlands, Huntsville, or Sugar Land.