Protect the Documents!

Recently it has come to my attention at the passing of a close loved one, that some of us have gone to great trouble and expense to create excellent estate plans, but we did not go to the same degree of trouble to assure that our family can find our estate plan after we have passed. This can present great problems, problems that cannot be overcome without considerable expense and family stress.
For example, Oklahoma law requires that your probate attorney file with the court your original last will and testament. This must be the document where you put pen to paper with your own hand and signed before witnesses and a notary. If we cannot locate your original last will and testament following your death, the court will be required to presume that you did not like your last will and testament and decided to void it by destroying it. Therefore, a photocopy of your last will and testament can generally not be admitted to probate, and your estate will pass according to the Oklahoma statutes of intestacy and succession. Often, perhaps almost always, the last will and testament that the Oklahoma legislature has written for those who did not prepare their own last will and testament (the law of intestacy) does not resemble the plan that you would have chosen for yourself. This can result in people inheriting who did not have any close relationship with you during your lifetime. Maybe these heirs will be people who have serious addiction problems, or even worse, beneficiaries who are receiving Medicaid assistance and who will then lose that assistance.
In my mind, there is an even worse potential problem. If we cannot find your Advance Directive for Healthcare, perhaps a do-not-resuscitate order (DNR), and your medical power of attorney, it is likely that your wishes will never be known. It is even more likely that your closest loved ones will suffer great sadness and forever wonder whether they did the right thing for you in your most vulnerable moment. This is a stress and a distress that I believe that you would never voluntarily inflict upon your family. But if you have not done your estate planning, or have not left the documents where they can be found, this will likely be the outcome.
I encourage you, even urge you, to be certain that you have not only prepared a good estate plan but have protected it in a place where we will find it when the time arrives that we must use it. As your estate planning attorney, I will go so far as to say that your plan for protection of your estate planning documents is just as important as the actual preparation of the plan itself.


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