While the drafting of new estate planning documents generally replaces previous versions, we generally advise our clients to preserve their old documents because they may be useful in defending your intent after your death. For instance, suppose you prepare a new Last Will and Testament (“Will”) when others may be questioning your capacity and in that latest Will, you disinherit a child. If that child was excluded from prior versions, maintaining your previous Will may assist in thwarting an attempt by that disgruntled child to contest your Will.
The preparation of new estate planning documents does not always replace prior versions. For instance, if a revocable trust is amended, it is important to keep the original trust and any other amendments. Likewise, depending on the drafting of your power of attorney (“POA”), your old version may still be intact. Whether a prior POA is revoked is controlled by the language of the subsequent POA. There may be reasons not to revoke a POA, so be sure to discuss this with your attorney.
If, after updating certain estate planning documents, you wish to tell the world that you absolutely and without question revoke the previous versions, you can mark the previous versions. On a previous Will, you might write, “Revoked by new Will dated ___________,” but still maintain the original. If your POA revokes a prior POA, you should deliver the new one to your former agent and to all the financial institutions that have a copy.
Speaking of originals – if you retain a different attorney to update your estate planning documents, it’s a good idea to obtain your previous documents from the attorney who drafted them (assuming that attorney is maintaining the originals) and give them to your new attorney (assuming the new attorney will maintain the originals). Having all of your documents in once place can avoid future confusion and make administration of your estate easier.
