11.7 Safekeeping of Documents

• Library: Estate Planning in Virginia (Virginia CLE) (2018 Ed.)

11.7 SAFEKEEPING OF DOCUMENTS

11.701 In General. There are several alternatives for the safekeeping of executed documents. Regardless of which place is selected by the client, it is important to note in the client's file and confirm in writing to the client the place where the documents will be kept. As discussed below, the considerations vary depending on the types of documents involved.

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11.702 Originals of Documents.

A. Client's Safe-Deposit Box.

1. In General. If a client has a bank safe-deposit box, this may be an appropriate place to keep the client's executed will. This will keep the documents safe from fire, other casualty, theft, or tampering.

2. Legal and Practical Considerations. Although the laws of other states may make access difficult, Virginia law makes it fairly easy to get to the will when it is kept in a bank safe-deposit box. Virginia law provides that any interested person may have access to a safe-deposit box for the limited purpose of removing the will. Section 6.2-2302 of the Virginia Code provides:

A. Upon (i) the death of the sole lessee of a box or (ii) the death of a lessee of a box rented under the name of two or more persons upon proof satisfactory to the company that no then co-lessee is reasonably available for access to the box, the company may permit limited access to the box by the spouse or next of kin of the deceased lessee, a court clerk, or other interested person for the limited purpose of looking for a will or other testamentary instruments.

B. The company may require proof of death as it deems necessary prior to permitting access to a box.

C. Access to a box shall be under the supervision of a designated officer or employee of the company, and nothing shall be removed from the box except the will or testamentary instrument for transmission to the appropriate clerk.

D. The company shall (i) make a photocopy of any document removed from a box pursuant to this section, (ii) place the copy in the box prior to delivering the original to any person, and (iii) not be liable except for acting in bad faith or for permitting the removal from the safe deposit box of items other than the will or other testamentary instrument of the deceased lessee.

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If the safe-deposit box is in joint names with other individuals, those individuals can also access the box after the testator's death without relying on this statute. ¹⁰⁴

Section 6.2-2303 of the Virginia Code permits a limited number of people to access a bank safe-deposit box to remove a durable power of attorney or an advance medical directive if the box was rented in the principal's sole name and the principal is incapacitated. The bank must be presented with proof of incapacity in the form of a physician's letter, which must contain information required by the statute.

These statutes leave several questions unresolved, such as what, if anything, can be done about living trusts that are kept in safe-deposit boxes. ¹⁰⁵

B. Client's Home. Many clients choose to keep all of their documents at home in a fireproof box, file cabinet, or similar...