The literature on estate planning suggests that, after a person dies, there is occasionally a problem locating or validating that person’s will. What if we all had the option to file a sealed copy of our will with the state? Or what if that were the standard procedure? What would be the downside?
That is the standard procedure in some jurisdictions. My wife and I filed our wills with the court in Seattle, and have re-filed with each occasional update.
No real downside other than workload volume for the government. Typically in the US these things are filed with the county recorder, not the courts exactly. So if somebody died, a diligent search of every county they’d ever resided in would be needed to locate the will(s) they may have left behind.
An obstacle is that if the will is “sealed” = not available for public release, how does the person legitimately attempting to obtain a copy of e.g. their recently deceased parent’s will prove they are entitled to get a copy? Does the right to access depend on whether the will’s maker is alive or dead? IOW can you go retrieve Mom’s will from the Recorder while she’s still living without her knowledge and/or approval?
Only by reading the will in detail can the clerks determine who has an interest; and the laws vary by state on whether that’s solely the executor(s), or the beneficiar(ies) too. Mere kinship does not ncessarily confer access. And how do you, from 6 states away, reliably prove who you are? If they respond “Yep, we have such a will, but nope you can’t see it.” how do you tell whether they’re right or they goofed and what do you do about it?
So there are some practical problems that mostly stem from our highly decentralized society where the decedent, the executor(s), the beneficaries and the will are all spread all over the country.
Soapbox time as a guy married to an estates lawyer for 33 years …
By far the best place for a person to “file” their will is with all the executor(s) and beneficiary(ies). Plus the master copy with their other vital stuff whether that’s at an attorney, a safe deposit box, or even with the primary executor. And with everybody else knowing where the master copy (i.e. original) is. How do they know? Because there was a piece of paper attached to the will telling them that. Which package of paperwork includes any trusts, POAs, health care directives, and a roster of significant assets and accounts.
Being organized and thorough pays off here people. Really it does.
Funny this should come up, as my daughter’s mom died in December without a will that anyone can find.
Trust me on this: HAVE A WILL. Even though my kid is the only heir and no one is fighting over anything, it has been a colossal mess. The process of TRYING to find a will was a huge thing… and had there been a central repository of such things it would have saved a tremendous amount of effort. There not being one was an even huger thing.
The downside is, what if the intent of the now-deceased person changed over time? There have been historically lots of very formal mechanisms in place to have the effect you’re talking about. But what if Aunt Pearl files a sealed, sworn, notarized copy with the state in June 2023, gets sick in July, has an epiphany in August and handwrites an emotional bedside letter in September changing her mind about where the money goes, because her illness has helped her to see what’s really important in life, etc.?
The purpose of all these rules is supposed to be ensuring the intent of the decedent is carried out. Formality doesn’t always guarantee that over informal approaches.
Some states have that option. You can file your will with the county clerk. For example, Texas Government Code 118.062 provides that the County Clerk can charge you a nominal fee for keeping your will for “safekeeping filing.” One downside is that it’s a bit of a hassle if you change your will. You have to go to the county clerk to remove your old will and file your new will. And your heirs may not think to check the county records for the will. Most people don’t know that a will can be filed with the county. If it was a common practice then everyone would know, but that’s not currently the case.
If you keep your will at home, keep it something that your heirs will look in first, like one of those simple fire safes. You don’t want your heirs having to search through all your filing cabinets and cardboard boxes looking for it. As soon as your heirs see a safe, they’re going to know that important papers are in that.
Many people keep a copy of their Will with their attorney, who will by necessity be handling some aspects of the estate, and working with the executor.
interesting…but I disagree.
My lawyer specifically advised not giving out copies to beneficiaries.
If you change your will later, you create problems.
But -major difference here----I don’t live in the United States.
As to the OP’s question of “what if everyone filed a will with the government”, Yes it is a good idea, and that is how it is done in my country.
The government maintains an official “Registry of Wills”. When a death certificate is filed, this government office opens the will and notifies all parties.
It could work in America, using the existing Social Security system. (instead of an unknown maze of thousands of local county offices.) Everybody has a soc. sec. number.,so it would be easy to file a will associated with that number.
That is a risk. And in many family dynamics a very real risk. The hoped-for condition is to not be in one of those families.
One of my relatives ran into a problem with THAT after his grandmother just shy of her 100th birthday. She had a will she had wrote at one point and kept it with her attorney.
Unfortunately her attorney died twenty years BEFORE she did. And a lot of his files became misplaced in between the two deaths. They never did find her will.
That’s what we did here in Merrylande. Not that it’ll be a huge deal - we have only one daughter, so even if we didn’t have wills, in this state, everything would go to her anyway.
In Quebec, you are strongly advised to have a will drawn up by a Notary (which is a kind of minor league lawyer specializing in wills and real estate transactions), it will filed with the college of Notaries and immediately available upon death.
One thing you don’t do: put it in a safe deposit box. The bank will seal it until after the will is probated and if there is no will it will be intestate.