BILL PROPOSES CREATION OF A WILL REGISTRY
“Where do I keep my Will?” That’s often a question on my clients’ minds. “I don’t want my children to have any hassles when I’m gone.”
One of those perceived hassles involves finding the elders Will after they have passed away. And, personally, I see a legitimate concern for my clients.
No one knows your life the way you do. A Will is a private and important document, so people frequently keep it in a safe, hidden location. The problem with “secret” locations is, if you’re the only one who knows the secret and you pass away, your secret remains a secret forever. And, since a Will is only truly effective after you have passed away, keeping a Will in a secret location could mean that the Will never gets implemented because it is never found.
To overcome this possible problem, I provide each of my clients with a “Letter of Instruction.” The Letter is a document that the client fills out, providing the location and description of their important documents. The client can then provide the Letter to whomever they choose (probably family or whomever they have named as their decision-makers under their documents). In this way, the executor and agents know where to find the documents they will need, so they can make the decisions that have to be made.
But what if your attorney didn’t provide you with a Letter? Or, what if you didn’t bother to fill the Letter out and provide it to your “important people”?
On September 12, 2002, a new bill was introduced to the New Jersey Legislature. The bill proposes the creation of a Will Registry. Under the terms of the bill, the Secretary of State would maintain a Will Registry.
The Registry would contain the following information: the name of the person who made the Will, the date the Will was made, and information regarding the location of the Will at the time of registration with the Secretary of State. There would be a $10 fee for registering this information and an additional $10 fee for a search of the Registry to find the information, once registered.
Only “interested persons” would be able to access information from the Registry. “Interested persons” would include family members and persons such as executors. It is also important to note that the Registry would not include a copy of the Will itself, only the information outlined above. Furthermore, the registration of the information or the lack of registration could not serve as evidence as to the existence of a Will or the Will’s validity. For instance, someone could register information about a Will, draft a new Will several years later, fail to register information about the second Will, and the registration of the first Will would not prove that the first Will, as opposed to the second Will, was the person’s true and accurate last will and testament.
The proposed bill is modeled after a law enacted in Idaho in 2000.
Currently, New Jersey does not have a Will Registry. Wills are private documents. Wills are made public after a person dies, if the Will is submitted to probate.
The Will Registry that the bill proposes may be helpful. It may also prove to be more dangerous than good, as the example that I provided above indicates. Notwithstanding the fact that the Registry is not evidence of the Will’s existence or validity, that doesn’t mean that the information won’t cause family in-fighting and discord.
Locating a will at the right time can make a significant difference in how an estate is handled. If systems for tracking these documents evolve, it may alter both how they are stored and how easily they can be found when needed.
Most estate planning discussions focus on what a will says. Far less attention is given to whether the document can actually be found when it matters. A registry will not solve every probate problem, but it raises an important question: what good is a carefully prepared will if it remains hidden when the time comes to use it?