One of the most frequent questions we receive at LegalWills is “do I have to register my Last Will and Testament somewhere in order for it to be official?” The short answer is of course, no, but we’ll spend a little time today delving into what it means to register a Will.
First, a point of clarification. We are speaking purely of registering your Will while you are alive, not the registration of a Will that happens once you have passed away, after your Will has been probated and read.
The act of registering a Will while you are alive is an attempt to overcome the problem of people not being able to find a Will when they need it. We wrote about this in a previous blog posting, and we’ve seen stats claiming that 67% of people do not know where to find their parents’ Will. It is vital that the right people can find your Will at the right time, and this is where the concept of registering the Will comes in, but in our opinion it’s a highly ineffective way of attempting to solve the problem.
No country has an official central Will registry, but let’s look at a few approaches taken by different jurisdictions that allow for the registering of a Will.
In British Columbia, you can register the location of your Will with the provincial department of vital statistics. For about $18 you can file a notice that ” identifies that a will has been registered and describes the person who has made the will, where the will is located, and the date of the will.” You cannot register the Will itself, but you can say “I have a Will and it’s at home in my bedside table”. Once you have passed away, your loved ones can contact the vital statistics department, pay $20, submit a death certificate and request a search.
In the UK it has been left to private enterprises to offer the same kind of service. Certainty.co.uk appears to be the market leader in allowing you to register the location of your Will, but again, it’s not the Will itself, but a pointer to the location of the Will, whether that be with a solicitor or a location at home. For this, the charge is £30. (although searching for the registered Will costs anything from £25 to £235!!). However, Willdata.info also claim to be the UK National Wills registry and it never helps to have more than one national registry!! (WillData incidentally is free to register a Will, and £18.50 to search)
Some States in the US have tried to do a little more. For example, in Alaska, you can deposit a Will for safekeeping with the courts. The service is described as follows
“If you deposit your will with the court, it will be kept in a secure place, and the will is kept confidential by the court until you die. After you die, your will is no longer confidential and it becomes a public court record. Also, even though your will itself is confidential while you are living, the fact that you deposited your will for safekeeping is not confidential, and others may search electronically for the names of people who have deposited wills.”
The fee for this service is $40. But the service comes with this reminder “It is your responsibility to be sure the designated person(s) know that upon your death they must contact the court and request your will.”
There is definitely a real issue with Wills not being located when they are needed, but the registration process seems to be a very poor effort at solving that problem. I would hazard a guess that less than 1 percent of Wills are registered, and in reality, hardly anybody has even heard of these registries. The idea of paying $20-$50 to store centrally the piece of information that states that your Will is stored at home in a cookie jar seems ridiculous, and in some cases it is little more than opportunism by private corporations.
The bottom line is that there is no requirement to register your Will centrally to make it legal and in our opinion, there is very little value in doing this. We do have a service at LegalWills that allows you to create messages for loved ones to be distributed after you have passed away, and this would seem to be as effective as any of these Will registries. We try to reinforce the practice of regularly reviewing and updating your Will so storing the document itself with a government agency would seem to be counterproductive.
By far the most effective approach is just to tell your Executor where your Will is located. You will be trusting your Executor to distribute your assets according to your wishes, and they should be told ahead of time that they have been selected for this role. So you should have enough faith in this person to let them know where your Will is stored. This should guarantee that the document will be available to the right people at the appropriate time.