3rd Aug 2016
The answer: After you are deceased. Surprised some of you didn’t it? There is a common misconception that a Will must be recorded with some government body prior to someone’s death in order to be effective. In fact, many states no longer have any process for recording, filing, or lodging a Will prior to someone being deceased. What was it that made this notion come about, and why do some attorneys still record Wills before a person is deceased? Let’s examine some history.
Prior to modern recording and copying devices, there was a great fear of losing the original of the Will due to flood, fire, or simple carelessness or even as far as destruction by an heir that was left out of the document. There were several means that attorneys developed to help combat this real fear of a Will being lost or destroyed. One easy method was for the attorney to retain all original documents in a safe or vault. However, this did not prevent a Will from being lost to nature (the 1998 Nashville tornado for example), or creating storage difficulties if the attorney was retired or deceased prior to the client. Another means was to record or lodge the Will with the court thus creating a court record of the Wills contents, this however had many drawbacks. In most states, all recorded documents are public records and therefore could be accessed prior to someone’s death, meaning that nephew Bob could find out before Aunt Betty’s death if he was included or not in the Will and then in turn put pressure on Aunt Betty or refuse to let her see the little Bobs anymore. If a person changed their Will, then the change would need to be recorded or the family would face lengthy hearings after the person’s death on which Will and what provisions of that Will were valid. Another option was to make more than one original document, but in an era of mostly handwritten or individually typed documents, that too led to issues, if the duplicate originals were not the same word for word. This was compounded even more if a new Will or codicil (amendment to a Will) were made
later but not stored with each of the originals. Note that none of these solutions were required for a Will to be valid, these were just means attorneys came up with to address the possibility of losing a Will, with the most popular means being recording of the Will. Thus, because it was commonly done, recording was misinterpreted as being required.
Today, very few attorneys record Wills prior to a person being deceased, the public nature of records being one strong reason not to. While some laws in the past protected Wills from public view, that is gone in the days of freedom of informational requests. Additionally, with modern means of copying and scanning, it makes a lost original less of an issue. A copy of a Will can be probated, albeit with a bit more procedure required. Not recording a Will also makes changes to the document easier and more flexible with our ever evolving family situations, flexibility is needed. Also, most attorneys now have their clients take ownership of their originals rather than keep originals for their clients, letting clients choose the best method to secure their documents.
Back to the original question, recording your Will isn’t required to make your Will legal and isn’t a good idea to do before your death due to privacy and other concerns. Now whether to record your power of attorney – well that is a question for another time and a much more complicated decision.