Reviewing and Maintaining Estate Planning Documents: An Update

Clients often wonder how frequently their estate planning documents should be reviewed. Is there a set period of time we recommend to review and perhaps update wills and other estate planning documents? As we have advised in the past, the answer depends more upon needs and life stages rather than the passage of time.

The first consideration should be whether there is a need to change a document. For example, after a move to a new state, the estate planning documents should be reviewed by an attorney licensed to practice in that state. Further, if the executor named in a will has died, moved out of state, or is no longer the appropriate person to serve, the will should be updated to substitute another executor for the one who will no longer serve. Similarly, if a guardian for a minor child is no longer appropriate because he or she has relocated to another state, or because the guardian’s personal circumstances have changed, it may be necessary to revise the will to name a new guardian. A change in the tax laws may also suggest a need for revision of a will or trust, as would a significant change in financial circumstances.

New life stages may also provide reasons to update estate planning documents.  For example, when children are minors, it is often appropriate to establish a trust to hold a child’s inheritance until a child reaches a specific age in order to safeguard the funds and minimize potential waste. As a child grows up, the need for a trust may be eliminated, or the terms of a trust might warrant a change to give a child different benefits or more control. Similarly, when a child becomes an adult, it may be appropriate to name the child to a position of responsibility, as perhaps appointing the child as an executor.

For clients with a desire for more concrete guidance, and who think in terms of time, we generally recommend that documents be reviewed at least every ten years. There are some practical reasons for this recommendation. Estate planning documents encompass not only wills and trust agreements, but also lifetime planning documents such as powers of attorney and advance directives for health care. Particularly in the case of a power of attorney, periodic updating is important because individuals or institutions presented with a power of attorney are more comfortable accepting a recently dated document. Older powers of attorney, although perfectly legal, can raise concerns that the document may have been changed, revoked, or superseded in the interim period. A power of attorney that is more current is less apt to raise a question.

Regarding storage of original estate planning documents, for many years it was common for lawyers and law firms to store original wills and other documents for their clients. However, our firm and many others now turn over to the clients their original wills, trust agreements, powers of attorney, and health care documents, while maintaining electronic copies. It is of particular importance for the client to safeguard the original will, as only an original will, with very limited exceptions, may be probated. We recommend that original estate planning documents be maintained in a client’s home safe, secure file cabinet, lock box, or similar safe location. A safe deposit box at a bank is less desirable because of the difficulty in gaining access after a box owner’s death.