Getting a will done is step one. Step two is ensuring it is safely stored. Although many people choose to leave their will with their lawyer, store it themselves or put it in a safety deposit box, there is another option that seems to be less popular but just as secure – deposit with the court.

The Process

Rule 74.02 of the Rules of Civil Procedure governs the process, and amongst the requirements are the following:

• The depositor is restricted to limited number of individuals, including (i) the testator or a person authorized by the testator in writing, (ii) a lawyer who held the will or codicil at the time of retirement from practice, or, if deceased, the lawyer’s estate trustee, and (iii) a person authorized by the court;
• The court office must follow specific procedures for processing and storage of the documents; and
• During the testator’s lifetime, his/her will or codicil can only be copied, inspected or removed by the testator in person, by his/her guardian of property or by court order.

Rule 74.02 also provides for access to and release of the documents post-death.

Regarding post-death access, any person may copy or inspect a will or codicil of the testator on deposit, on filing a written request stating the testator’s date of birth and proof of death.

Regarding post-death release, this can only be to a named estate trustee or such other person as the court may direct, and is done after the filing of (i) a request for delivery, (ii) proof of death, and (iii) if no order directing delivery of the will or codicil has been made, an authorization signed by every estate trustee named in the will specifying the estate trustee (or the estate trustee’s lawyer) to whom the will or codicil is to be delivered (if an estate trustee is not available to sign, a written explanation will need to be given satisfactory to the registrar).

Is this for you?

If it isn’t convenient or viable for you to personally and safely store your testamentary documentation, if you don’t want it kept with your lawyer (or if there was no drafting lawyer), and if you don’t mind putting your executor to the task (and additional time and expense) to secure the document from the court post-death, this may be the option for you.

However, if you expect to periodically be making changes to your estate plan the deposit process may not be something that you would like to keep repeating. Further, if you wish to revoke your will on an urgent basis, it may be more difficult to do so. In the worst case scenario, this could result in a testator not having his/her testamentary wishes executed.

Thanks for reading and have a great day,

Natalia R. Angelini