I’ve been flooded with emails and calls from clients asking about their legal documents. Some are just curious about what would have happened, while others lost everything including their computers and legal documents. Obviously, many people are curious, so I decided it was worth writing about.
Original legal documents are important. Preserving an original document is always advised as opposed to relying on a copy. A copy can be either, a digital scan or printed reproduction of the original. California has what is known as the Secondary Evidence Rule (California Evidence Code, section 1521), this allows a person to submit, as evidence, a copy or reproduction unless one of two things applies; (1) “genuine dispute exists concerning material terms of the writing and justice requires the exclusion” or (2)“Admission of the secondary evidence would be unfair”. This means that you cannot introduce a copy if there is a genuine dispute that the copy is different than the original or if some other reason makes it unfair.
So, what does all this mean? Anyone who lost their original estate plan can rely on digital or paper copies. Any copy you may have in an alternate location, any copy given to a lender, bank or otherwise may be used. Even if you personally don’t have a copy, there may be copies out there. Certainly, your attorney should have kept a copy.
Proactively, I always recommend clients make a digital copy of their documents and save them “in the cloud” which can be done many different ways. You can save them to a cloud drive such as Dropbox or iCloud or you can simply email them to yourself and let them sit in your email inbox forever. That way you can access them from any computer in the world by simply logging into your email.
As we mentioned before, if someone disputes the copies as originals, perhaps by a disinherited heir or a disgruntled family member, they may become inadmissible.
We recommend executing a new document which becomes an original, that references the copies and verifies them as original. This essentially makes the copies an original by creating a new original document. Having this document notarized is highly advised. I suggest you contact an attorney rather than attempting this yourself.
Further strength can be given to estate planning documents by drafting the originals with language that states that copies may be relied upon if presented. This helps organizations such as banks or title companies accept the documents as legally binding. A good estate planning attorney will do this automatically.
What if no copies exist? If no copies exist, this is a problem. There is no way to prove the original terms of the documents. If the person who originally executed them is still alive and capacitated, then simply creating new documents is the easiest way. If those documents were created in a word processor, it may be as simple as changing the date on the documents, reprinting them and having them notarized. If the person who originally created the documents is not able to re-execute them, then unless other methods are available to prove the contents, it will be as if they never existed in the first place.
Make digital and hard copies of your documents. Place paper copies in a fire proof safe or give them to a very trusted person for safekeeping. Email copies to yourself. If you don’t know how, ask a friend or family member who may be a little younger than you to help you with this.
As a native Sonoman, I stand with all Sonomans during these difficult times. #SonomaStrong