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Private Client Services Update - Protecting Your Estate Planning Documents and Ensuring They are Accessible When Needed  Print PDF

By Gregory R. Davis, William L. Holt and Private Client Services

Estate Planning Documents and Safe Deposit Boxes
Gregory R. Davis

Many clients assume that bank safe deposit boxes are the logical or even required repository for wills, original trust agreements and other important documentation. Our lawyers commonly advise clients to use safe deposit boxes with some specific guidance. Despite the long popularity of safe deposit boxes, alternatives are becoming increasingly prevalent. 

Safe Deposit Boxes and Probate. Much time, energy and legal work is devoted these days to probate avoidance. Unfortunately, many clients take great care to complete the trust documents, asset structuring and beneficiary designations necessary to avoid probate and then place original documents and other valuables in a safe deposit box which will require probate proceedings to access. Although safe deposit boxes are not “frozen” upon death under Virginia law, banks have authority only to allow family members or a probable executor the right to access the box to retrieve a will. The box is then inaccessible until the executor has qualified and the probate process is invoked. 

Thus, members of the Kaufman & Canoles Private Client Services Group often advise that, in addition to husband and wife, trusted children or family members be given access to the safe deposit box and notified as to the location of the safe deposit box key(s). 

Further, despite being viewed as the gold standard for document storage, safe deposit boxes have drawbacks. Travel to the bank is not always convenient and the boxes are only accessible during banking hours. Banks and their safe deposit boxes are not immune to the hazards of natural disasters such as hurricanes or floods which similarly threaten documents stored at home. 

Home Fire Safety Boxes. Fire safety boxes maintained at home can present an attractive alternative to safe deposit boxes in limited circumstances. A fire safety box or “FSB” can be conveniently accessed night or day for ease of reference to documents. 

Many boxes are safe from fire hazards. Underwriters Laboratories (“UL”) rates two types of boxes based on the maximum temperature the box will reach when exposed to fire. The 350 rated boxes will keep the inside maximum temperature below 350� and UL recommends these for paper documents. Boxes rated at 125 are more protective and are recommended for CDs, thumb drives, and more fragile media. Many fire safe boxes are also waterproof, but it is advisable to ascertain this based on the specific model purchased. Items inside an FSB may be placed in zip locked bags for extra waterproof protection.

Although some clients find FSBs to be a cost effective alternative to a bank safe deposit box, FSBs are not foolproof. The smaller, less expensive models can be carried away by thieves, and thus do not offer adequate protection for valuable jewelry, silver or irreplaceable tangibles. Curious or ill-intentioned visitors might access an FSB without authority. Although heavier, built-in home safes are available, they are more expensive and require more permanent installation.

Conclusion. Both safe deposit boxes and fire safety boxes offer advantages and disadvantages. Ultimately, the proper choice should be made upon careful thought and personal preference. FSBs provide ease of access that safe deposit boxes may not if appropriate measures to secure access by family members are not adequately followed. This simple but important aspect of estate and business planning should not be ignored. 

Ensuring Your Advance Medical Directive is Accessible When Needed
William L. Holt

Executing an advance medical directive is a critical piece of every estate plan, but once your wishes are expressed in such a document, how can you be sure that they will be made known in your time of need? In 1996, the U.S. Living Will Registry was established precisely for this purpose and it exists to provide peace of mind in such situations. By simply completing a one-page Registration Agreement and providing a copy of your advance medical directive to the Registry, your document can be stored in a secure, on-line database where it can be easily accessed by you and by health care providers anytime and anywhere.

Registration of your document is completely free of charge when registered through a participating health care provider, hospital or community partner of the Registry. Once enrolled, your document remains accessible throughout your life, and an on-line account is established, which you can use to access and make changes to your document and personal information as needed. All registrants are contacted annually by the Registry to ensure that information is updated and accurate. The Registry also provides all registrants with a wallet card listing your registration information, so that your document can be easily accessed during an emergency. For more information about the U.S. Living Will Registry, you can visit www.uslivingwillregistry.com.

Many states also provide a similar database registry for storing advance medical directives. Later in 2011, Virginia is preparing to launch a statewide “Advance Health Care Directives Registry” that will provide a free, secure tool to store important documents. For more information about the Virginia AHCDR, you can visit www.vdh.state.va.us/Administration/AHCDR/index.htm. Look for an update from the Kaufman & Canoles Private Client Services Group once the Virginia AHCDR is launched.

Gregory R. Davis is the managing partner of the Williamsburg office of Kaufman & Canoles and a member of the firm’s Executive Committee. His practice includes estate planning, corporate law, health care, real estate, and land use.  Greg can be reached at (757) 259.3820 or grdavis@kaufcan.com.

William L. Holt is an attorney at Kaufman & Canoles, where his practice focuses on estate planning, business law, and real estate matters. He is a member of the firm’s Private Client Services Group and the Real Estate Strategies Group. Will is a graduate of the College of William & Mary’s Marshall-Wythe School of Law.  Will can be reached at (757) 259.3885 or wlholt@kaufcan.com.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.