Custody of Original Will

The testator must determine the proper custodian for the original will.  It is important to store the original will in a secure location where it may be readily found after the testator’s death.  Thus, some testators elect to keep the will at home or in a safe deposit box, while others prefer the drafting attorney to retain the will.  In the normal situation, an attorney should refrain from offering to retain the original will because the original is then less accessible to the testator.  Consequently, the testator may feel pressured to hire the attorney to make changes and the beneficiaries may feel obligated to retain the attorney to probate the will.  Some courts hold that an attorney may keep the original will only if the testator makes a specific unsolicited request.

If a will contest is likely, however, it may be dangerous to permit the testator to retain the will because the will then stands a greater chance of being located and destroyed or altered by the unhappy heirs.  You may need to urge the testator to find a safe storage place that is not accessible to the heirs, either now or after death, but yet a location where the will may be quickly found upon the testator’s death.

A recent article, Helen W. Gunnarsson, Should You Store Your Client’s Will?, 94 Ill. B.J. 532 (2006), explains how this issue is handled in Illinois and suggests that a statutorily created central will repository may be the answer.