Safe custody - what is it and why is it needed

Safe custody – what is it and why is it needed?

I often get asked about safe custody documents, so I thought I would dedicate this article to answering some common questions about solicitors storing documents for clients and why this is a service you should consider using.

Think about this scenario, a loved one has recently passed away after indicating to you that they have appointed you as the executor of their will, but you have searched their home and cannot find the will. The bank will not close the accounts and distribute funds unless there is a grant of probate, but in order to obtain a grant of probate, you need the original will. Where is it??? Despite popular belief, there is no centralised register of wills in NSW. Trying to locate someone’s original will, power of attorney, certificate of title or other important legal document when they can no longer tell you where it is, is unfortunately a common problem.

What is safe custody storage?

Most solicitors have had the experience of dealing with clients who are unable to locate important original documents. In order to try and stop this sort of problem occurring, solicitors will often offer their client the option to leave their original document in their safe custody storage. Solicitors keep an internal register of all safe custody documents held on their client’s behalf, including the date a document is added or removed, and store them in a safe place until they are needed. The solicitor will update their register when new documents are created and added by a client, or older documents signed out. Safe custody documents should not be confused with client files, while a solicitor may open a client file each time they are asked to act in a matter and retain all correspondence and notes in relation to that matter in their file, safe custody documents are documents held on a client’s behalf for safe keeping.

Why is it needed?

The scenario above is the perfect example of why safe custody storage is needed. Although you might know exactly where you keep the important documents in your home, your loved ones may not know or remember – particularly if you have a good hiding spot! You also need to consider that something could happen to both you and your partner so unless you want multiple people to know where the good hiding spot is, the safest option might be to store the original document with your solicitor so it can be located when it is needed. This also hopefully avoids some of the many stories I have heard from clients of original documents being eaten by mice, destroyed in floods or fires, or just being lost in that messy drawer where everyone dumps paperwork until someone feels the need to clean it out and recycle. It’s treated a lot like “the dog ate my homework” excuse when you try to explain to a court registrar why you don’t have an original document to produce!

Accessing documents

A common concern is that a solicitor will not release a document when it is needed. I get a lot of questions about whether safe custody documents require payment of a fee in order to release them – the short answer, at least at my firm, is no. You can access your safe custody documents at any time provided, for obvious reasons, you are able to provide verification of identity to confirm they are actually your documents. If you are an appointed executor, attorney or guardian trying to access another person’s safe custody documents, be prepared to provide copies of additional documents such as medical/death certificates to confirm that you are the appropriate party to release the safe custody documents to. Also consider whether you actually need to remove the original document or just request a certified copy – like it or not, solicitors need to see the original document in order to make a certified copy and that’s a lot easier when we have the original in our safe custody storage.

Another concern is what happens to safe custody documents when a solicitor retires. The good news is that solicitors and law firms in NSW are registered with the NSW Law Society and they keep records of where safe custody documents are transferred once a law practice closes its doors. If a client advises me that they cannot locate a will prepared by a solicitor and the firm has closed, my first call is usually to the Law Society. More often than not, if an important document has been stored with a solicitor, I can track down where the document has been moved to or who signed the document out of the solicitor’s safe custody register pretty quickly.

If you have important original documents that you do not need access to regularly, but want to know they are safe and can be accessed by your attorney, guardian or executor at the appropriate time, consider whether you should open a safe custody packet with your solicitor. It is often a free service solicitors provide to their clients to avoid the problem of missing or lost documents. KC Hilton, WNB Legal.