A blog series from the planning team at Disability Planning Partners, Inc.
“Oh no, why can’t I use the Power of Attorney to get the Will out of the safety deposit box?”
A Power of Attorney document is an incapacity planning document which gives “your person” (legally “your person” is defined as your “agent”) permission to handle financial matters for you if you are unable. The authority can be broad or specific, but the authority is granted over financial matters.
Here’s an example.
Let’s say Sally is diagnosed with unspecified memory decline. Sally would want to create a Power of Attorney (legal abbreviation known as “POA”) document naming someone she trusts to manage her financial matters if she is unable to manage them on her own in the future. Sally has two daughters, Sue and Sheila, but she trusts Sue more.
Sally hires an estate planning attorney to assist her in preparing some documents. Sally names Sue as her agent under the POA. Sally also executes a Will that gives all of her assets to her two daughters. Sally gives a signed copy of her POA and a signed copy of her Will to her daughters. –
Sally passes away. Her original Will is in her safety deposit box at her local bank. Sally is the sole owner of the box and no one else has keys. When Sue attempts to use the POA document to access her mom’s Will, she is denied access to the safety deposit box. But, wait. Why?
The POA is only in effect during Sally’s lifetime. Because Sally died, the power in the document died with Sally. Sue will need to ask a probate court to grant her permission (through a legal document known as a decree) stating that Sue could recover the Will from the bank. But, wait, Sue has a copy of the Will, won’t that work?
NO! An original Will must be submitted to the probate court.
Avoid the sticky wicket here. Either keep the original Will in a fireproof safe or give the Executor access or ownership to the safety deposit box. If you partner with Disability Planning Partners for your estate planning needs, we’ll happily hold your original Will for safekeeping.
But this example shows that this isn’t the only sticky wicket here. Sally’s Will won’t work to give her daughters all of her assets. But, wait, why? Stay tuned for the next installment of our Issues Gone Wrong in Estate Planning series.
