When it comes to Estate Planning, Storage and Communication Are Just as Important as the Plan Itself
Many people assume that once a Will or Trust is signed and their funding is completed, their planning is complete. But if your executor doesn’t know they were appointed, they can’t find your original documents, or your family doesn’t know who to call to get the answers they need, your time and investment to put a plan together may fall apart when it’s needed most.
Here’s why:
- If the original Will cannot be found, Illinois courts assume that you intended to revoke the Will. That’s because 755 ILCS 5/4-7 allows you to revoke your Will by “burning, cancelling, tearing or obliterating it.” So, if no one can find your Will, the Court assumes you destroyed it (during what I’d like to imagine was an emotional late-night where they tore it up and obliterated it in a bonfire).
- If two versions of your Will are discovered, family members can disagree on which version is valid and where the “real” documents were supposed to be located. These inter-family disputes inevitably lead to delays, unnecessarily high legal costs, and unreparable damage to relationships.
- If your trustee or executor doesn’t know they’ve been named, or where to locate your documents…inevitably, they will be unprepared to act when an emergency arises.
Planning is more than paperwork. It’s about ensuring the right people know you’ve named them, their role, where your documents are, and what to do.
Why You Still Need a Will, Even If You Have a Trust
Trusts are powerful planning tools — they can help you avoid probate, unnecessary taxes, protect privacy, and manage your assets efficiently. But they don’t replace the need for a Will. They work in tandem and complement one another.
When any self-respecting attorney prepares a Trust, they will also include what is called a Pour-Over Will. A Pour-Over Will acts as a safety net:
- It directs any assets you forgot…or didn’t even know you were supposed…to transfer into your Trust during life, into the Trust after your death. Your Pour-Over Will serves as the conduit (or pitcher), for the court to legally direct (“pour”) the assets owned in your name at death into the Trust.
- Without it, those “orphaned” assets that weren’t owned by your Trust, would instead be distributed under Illinois intestacy law, which may not reflect your wishes contained in the Trust.
At Family Wealth & Legacy Legal Solutions (FWLLS), every Trust-based estate plan we create automatically includes a Pour-Over Will. We don’t like to leave loose ends and always have a contingency plan.
More importantly, we take the time and effort to explain the importance of “funding” to our clients and how to properly “fund” each one of their individual assets into their trust. This is extremely important because one of the main reasons most people invest their time and money to create a Trust is to avoid probate. For our clients, we explain the importance of avoiding the unnecessary delay and expense of having to open a probate to enforce the Pour-Over Will. We merely want it to serve as a safety net, just in case.
Best Practices for Storing Your Estate Documents
1. Use a Fireproof, Waterproof Safe
Your documents should be protected from physical damage. Fireproof and waterproof safes designed for legal-size papers are an excellent choice. There are a ton of inexpensive options on Amazon just for this purpose. Yet, regardless if you put your documents in a safe, fireproof bag, or have a great hiding spot, our advice is always to make sure the documents are easily accessible to your loved ones. If no one knows where the safe is, the combination or how to quickly gain access, your careful planning becomes useless.
2. Maintain Clear Instructions
Your executor, trustee, and agents under powers of attorney should all know exactly where your documents are stored and how to access them quickly.
3. Keep Digital Backups — But Remember Their Limits
Digital copies can be encrypted and stored on a secure cloud platform or external drive for easy reference. They’re helpful, but in Illinois they don’t replace the original Will.
(At FWLLS, we keep copies of all signed documents on file for our clients. While they cannot replace the original Will in court, they can provide clarity and a fallback if questions arise.)
Who Needs to Know About Your Documents
Executors and Trustees
These individuals carry the heaviest responsibility. They’re legally in charge and should not only know that they were appointed to their role, but also where your original documents are located.
Agents Under Power of Attorney
During your lifetime, these people may need immediate access to documents in an emergency to make medical or financial decisions on your behalf.
Family Members & Trusted Loved Ones
You don’t have to hand out copies to everyone, but providing general awareness can prevent unnecessary confusion or suspicion. We recommend that copies are NOT provided to your loved ones because if you have a falling out and update your documents down the road, you don’t want to have a dispute as to which version is current and valid. Instead, we recommend that our clients notify their loved ones of where their documents are located, so that the most recent draft can quickly be tracked down when needed most.
Illinois’ Specific Rules for Wills
To be valid in Illinois, a Will must be:
- In writing,
- Signed by you, and
- Witnessed by two credible people (755 ILCS 5/4-3).
After death, whoever has the Will must file the original with the clerk of the circuit court in the county where you lived, within 30 days of learning of your passing (755 ILCS 5/6-1).
If the original is missing, as mentioned above, the court presumes it was revoked. Overcoming this presumption requires clear and convincing evidence — often a lengthy, stressful, and unnecessarily expensive process.
The Takeaway
Your estate plan isn’t finished when the documents are signed. It’s only complete when those documents are safe, accessible, and utilized at the right time to ensure that your wishes are followed and implemented efficiently and cost-effectively.
At FWLLS, when we design a Trust-based plan, we always include a Pour-Over Will to ensure no asset is left behind. Combined with the right funding, storage and communication strategy, this approach can guarantee your plan works the way you intended — no matter what.
At Family Wealth & Legacy Legal Solutions (FWLLS), we don’t just draft Wills and Trusts — we put systems in place to make sure your plan can be found, accessed, and followed. Schedule your initial call today and take the first step in protecting your legacy.
FAQ: Common Questions About Wills and Document Storage in Illinois
Q: Do I still need a Will if I have a Trust?
Yes. A Trust avoids probate for assets placed in it, but a pour-over Will ensures that any assets not in your Trust are directed there after your death. At FWLLS, every Trust-based plan includes a Pour-Over Will.
Q: What happens if the original Will is lost?
Illinois courts presume the Will was revoked pursuant to 755 ILCS 5/4-7. A copy may be admitted only if strong evidence proves otherwise — for example, witness testimony or proof that it was your intent for the Will to be valid at the time of your death.
Q: Can I keep my Will only in digital form?
No. Illinois does not recognize electronic Wills, unless very specific rules are followed when signing the document pursuant to the Electronic Wills and Remote Witnesses Act. Digital copies are helpful for reference, but unless you complied with the new Act, the general rule is that the court requires the original, signed document.
Q: Who should know where my documents are stored?
Your executor, trustee, and agents under power of attorney should all have clear instructions on where to find your original documents. At a minimum, one trusted person should know the exact location and how to access them quickly in an emergency.
Q: How soon does a Will need to be filed after death?
Illinois law requires that the original Will be filed with the county clerk “immediately” upon someone’s death, but as a general rule, it should be filed within thirty (30) days of learning of the death. Specifically, 755 ILCS 5/6-1 says that it is a crime and a Class 3 Felony “if any person wilfully alters or destroys a will without the direction of the testator or wilfully secretes it for the period of 30 days after the death of the testator.”
If you enjoyed reading this article and made it to the end, please leave a comment and let us know your thoughts and your biggest takeaway. If you think your family and friends could benefit, please share it on social media to spread the word.
This article is a service of Family Wealth & Legacy Legal Solutions (FWLLS). At FWLLS, we do not just draft documents; we ensure you make educated, informed and empowered decisions for yourself and the people you love. That’s why we offer a Family Wealth & Legacy Strategy Session™, during which you will get educated and begin to prepare to avoid life’s most common legal problems and get a plan in place to make the best possible choices for the people you love. You can begin by calling our office today to schedule a Family Wealth & Legacy Strategy Session and mention this article to find out how to get this $900 session at a significantly discounted rate, or even for free.