November is “Make a Will Month” in Ontario – a time when estate planning takes center stage for lawyers and clients alike. While drafting a Will is a critical step, an equally important (and often overlooked) question is: where should you store the Will once it’s made? Safety deposit boxes are a common choice, but they come with unique risks and responsibilities, especially after death.
Why Use a Safety Deposit Box?
Safety deposit boxes offer privacy and protection from theft, fire, or flood. They’re commonly used to store jewelry, coins, title documents, and sentimental items. But not everything belongs in a safety deposit box. For example, storing your original Will or Power of Attorney documents can create serious problems if your executor or attorney cannot access the box after your death.
What Happens When the Box Owner Dies?
Upon death, access to a safety deposit box becomes restricted. Banks typically require proof of death and legal authority (e.g., probate or a court order) before allowing access. If the Will is inside the box and the executor doesn’t have a key or shared access, this can delay probate and create legal hurdles.
Alternatives for Storing Original Wills
When it comes to Will storage, there are a few things to keep in mind:
- The Will needs to be held in a secure location;
- The location should be fireproof, waterproof and pest proof; and
- The Will should be accessible to the executor(s).
To avoid complications with safety deposit boxes, consider these alternatives:
- Lawyer Storage:
- Storing a Will with the drafting solicitor is often the most secure and accessible option. Many estate lawyers offer secure Will storage in fireproof, locked facilities. This ensures the Will is professionally safeguarded and accessible when needed. The Law Society of Ontario requires lawyers to store original Wills indefinitely unless agreed otherwise with the client.
- However, if the lawyer retires, moves, or passes away, tracking down the successor firm is likely necessary. It’s important to stay in touch with the drafting lawyer and keep contact information updated.
- Home Safe:
- A fireproof and waterproof safe at home can be a viable option – provided the executor knows its location and has access. This method offers convenience but carries risks of unauthorized access or accidental loss. Confidentiality may also be a concern if others in the household can access the safe.
- Court or Registry Storage:
- Section 2 of the Estates Act allows testators to deposit their Wills with the courts for safekeeping.
- Other than testators, Rule 74.02 of the Rules of Civil Procedure lists persons who can deposit a Will with the registrar of the court. This provides secure storage and ensures the Will is retrievable by the executor after death.
- However, during the testator’s lifetime, the Will is only available to them, so this may be a less convenient option if a testator plans to update their Will frequently.
- See our blog: Who Can Access Wills or Codicils Deposited at Courts in Ontario?
Best Practices for Using Safety Deposit Boxes
Should you choose to use a safety deposit box, keep these practices in mind:
- Keep a detailed inventory of box contents and consider third-party insurance;
- Avoid storing original estate documents in inaccessible locations;
- Ensure your executor knows where your Will is stored and how to access it;
- Understand the bank’s specific rules and procedures before renting a box; and
- Review your storage plan regularly, especially after major life changes.
Key Takeaway
While safety deposit boxes can be useful, they must be managed carefully, especially in the context of estate planning. As estate litigation lawyers, we often see how poor planning around these boxes and Will storage can lead to delays, disputes, and lost assets. No matter where you store your Will, the most important step is to inform your executor or next of kin. A well-drafted Will is only useful if it can be found and accessed promptly after death.
Thanks for reading!