What Happens When Documents Are Lost?

         Misplaced, unidentified and lost estate planning documents cause LOTS of problems, such as:

Decedent’s wishes are not followed: 

How does the Probate Court know that it has the decedent’s most recent Will?  Individuals often make changes to their estate planning documents, and even hire different attorneys to create new documents without notifying the prior attorney.  Example: John Smith creates an estate plan in 2002 with Attorney Jane Sullivan that gives all of his assets to his only daughter.  In 2013, John Smith’s daughter is arrested for drug dealing. As a result, John Smith decides to create a new estate plan in 2013 with Attorney Franklin Johnson, that cuts his daughter out of the Will and gives all his assets to his favorite charity.  John Smith dies in 2014.  John’s daughter presents the 2002 Will to the Probate Court, and since neither John’s daughter nor the charitable organization know about the 2013 Will, John’s daughter inherits all of John’s assets against his wishes.  As a result:

o   Charities miss out on testamentary gifts

o   Heirs inherit assets they are not entitled to receive

o   Beneficiaries miss out on inheritances

o   Job of the Probate Court is undermined

Health Care professionals need someone to make life-sustaining decisions:  

Health Care Proxies allow a person to make medical decisions for another individual when that individual is unable to make decisions for himself/herself.  However, it is very difficult to find the document when it is most needed.  For example: Joseph Borges has no spouse or children.  He executed a Health Care Proxy that names his brother Ted, who lives in another State, as his health care agent.  Joseph is in an accident and airlifted to a hospital.  The medical staff does not know who to contact to make decisions about Joseph’s treatment, and Ted has no idea that Joseph has been in an accident. Health Care providers have to file Court documents in order to make certain health care decisions for Joseph, which is time-consuming and expensive.

Real Estate with a title problem:

Real estate attorneys and title examiners often come across title problems due to un-probated estates or unrecorded Trust documents.  Locating potential relatives or tracking down a missing Trust is lengthy and costly, making it difficult for an individual to ‘clean up’ a bad title so it can be sold.

Government Agencies checking for assets: 

Many States require that a person’s Last Will and Testament be filed with the appropriate Probate Court within thirty (30) days of an individual’s passing.  This law serves many purposes, but mostly to help governmental agencies identify a person’s relatives and assets.  Without having a centralized place to search, the State is left to appoint attorneys to go through lengthy and expensive procedures of opening Probate cases, playing detective, and locating potential relatives and assets. 

            A centralized and searchable site for the existence and location of estate planning documents will alleviate, if not eliminate, the            

             problems identified above.