You’ve just come back from the lawyer’s office or from a meeting with your financial planner or you’ve finally finished your tax return. Your dining room table is covered with paper. What do you keep? Where do you put all these important legal documents?
Keep your Will in a safety deposit box or a safe to which someone else also has access. Don’t make copies or, if you do, only copy the pages showing what you leave to whom and not the signature page. This should be enough to remind you if you need to make a change. If you copy the entire Will, you are likely to forget to tear it up when you make a new one. Someone may find the copy of your old Will but not the original of your new Will. Someone who receives less under your new Will may “lose” your new Will. In Texas, a copy of a Will can be accepted to settle your estate if the two witnesses (or one witness and the notary) testify that it is a copy of the Will they witnessed.
What if you lose your actual Will? In Texas, lawyers are required to keep a Will “forever.” This can be a copy (marked “copy”) in a client file, vault or safety deposit box. If you lose your Will, contact the lawyer who drafted it. If you want to make changes, you may be able to sign a Codicil which just makes those changes and confirms (“republishes”) the original Will.
Today much of your property need not pass under your Will. You do not need to keep a copy of your deed: the definitive deed is recorded by the county clerk of the county where the real estate is located. You do need to keep a list of your insurance policies, bank and brokerage accounts (including IRAs, 401(k)s and other retirement accounts) together with a copy of the beneficiary designation pages or, in the case of bank accounts, signature cards showing how the account is held. These can be stapled to the back of your Will to make your executor’s work easier.
Durable [Financial] Power of Attorney affecting real estate
If you have a Durable [Financial] Power of Attorney affecting real estate, the original should be recorded with the county clerk of the county where the real estate is located. This recording makes it effective with regard to real estate. Keep a copy. Give a copy to the people you name as agent and successor agent and to anyone to whom they may need to report, such as your financial planner, bank officer or a sibling who may wonder how the money is being spent.
Medical Power of Attorney
If you have a Medical Power of Attorney, make plenty of copies. Give one to the people you name as agent and successor agent and to each of your doctors. Keep one in a “grab and go file” in case EMS rushes you off to a new hospital and someone needs to contact one of your agents for you.
HIPAA Medical Information Release
Attach a HIPAA Medical Information Release to every copy of your Medical Power of Attorney. Your Medical Power of Attorney allows the agent you name to speak for you. Your HIPAA Medical Information Release allows the doctors to talk to the people you name, including your agent. You may want to name additional people in your HIPAA Medical Information Release: people who you do not want to speak for you but whom you want the doctors to be able to talk to. These may include other children or siblings, someone from your church or a close friend. Given them a copy of your HIPAA Medical Information Release, too. Consider adding a letter to your Medical Power of Attorney: reading it may reassure your agent that they are making the kind of decision you would make if you could speak.
Advance Directive to Physicians
Your Advance Directive to Physicians states what you want to happen if you are in a permanent vegetative state or if your doctor thinks that even with medical treatment you have no more than six months to live. Give a copy to each of your doctors and keep another in your “grab and go file.” You may want to review this from time to time. One study of people with at least two chronic conditions found that two years after they had signed an Advance Directive to Physicians, 82% of people with physical difficulties and 83% of people with mental challenges wanted more aggressive treatment than they had chosen earlier. They seem to have decided that they could live with their problems.
Declaration of Guardian in Case of Need and Mental Health Directive
Copies of your Declaration of Guardian in Case of Need and Mental Health Directive should also be given to your doctors, everyone named in your HIPAA Information Release and everyone named in your Durable Power of Attorney, whether as an agent or as someone to whom the agent might have to report. You want to make sure that they are presented if the need arises.
Documents Needed When Applying for Medicaid
If someone needs to help you apply for Medicaid, they will need to account for every transfer of property and every expenditure for $200 or more for the past five years. Bank statements are generally available online for seven years. You can keep your tax returns and backup documents for seven years as well. (While you can order a tax transcript from the IRS, it will not include the backup documents from your broker or documenting sale of real estate or business interests.) Consider creating electronic files or email accounts in the name of any LLC, partnership or trust to keep all the related documents in electronic format – and make sure someone else also knows the username, password and any security questions and answers.
Estate Planning attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
She assists families of people with special needs, people planning for the retirement years and people administering estates.