Most estate planning attorneys take on the responsibility of holding their clients' original wills and other documents. They do this for two reasons. First, they are often better equipped to keep the originals safe where they can be found when needed. Second, there's the hope that when the time comes, the client's family will return and engage the attorney or her firm to help probate the client's estate. Many law firms see their file cabinets as goldmines, or at least as insurance that they'll always have business in the future. This is especially the case, since many charge very low fees for preparing estate plans and higher fees for assisting with probate administration.
But this practice of holding original documents raises a number of questions that are seldom asked and answered. These include the following:
- How long must the law firm hold the original will? The answer is indefinitely, unless the firm and the client have another agreement. I started the predecessor firm of Margolis & Bloom in 1987, 33 years ago, and we still have some wills and other documents dating back three decades. We have to hold them secure, even though we have long lost track of the clients. Some years ago, we saw the light and we now have an agreement that we may dispose of original documents if we have not had contact with a client for 10 years, despite our efforts to reach out.
- Do lawyers have an obligation to find out when a client has died? The answer is no. In smaller towns, where the lawyer is likely to hear about a client's death, they will let the family know that they hold the original documents. If lawyers do hear about a client's death and are not retained to assist with the probate administration, they must file the will with the appropriate probate court within 30 days of the client's death. However, absent knowledge of his death, they have no obligation to be searching death records for all their clients to find out if they've passed away.
- Must lawyers offer to hold original wills and other documents? No. And increasingly, lawyers are not offering this service. It turns out that it can be more trouble than it's worth. We, for instance, have many fireproof safes holding original documents for clients we haven't seen in decades. Not being in a small town and given that people move around a lot, often moving to be close to children and grandchildren in later years, few of these files will turn into future business. Increasingly, lawyers and law firms decide that they do not want to take on the liability and expense of storing original documents for their clients, especially as in all other ways, they are going paperless.
- What happens to original wills when a lawyer retires? If the lawyer is part of a bigger firm, the firm will continue to hold the original documents. But we've seen many solo practitioners move their will files to their garages, continuing to supply the originals when requested for as long as they can (except for the several months a year they're in Florida). Ultimately, in these cases, the retired attorney passes away and his spouse or children discard the files if they can't find another firm to take them on. When the partners of Russell, McTernan, McTernan & Fruci decided to retire a few years ago, they took the responsible step of getting in touch with us. They ultimately merged with Margolis & Bloom and we now hold their will files.
In our office, to limit the profusion of paper files, we now only store the original wills and an original durable powers of attorney for clients. Copies of other original documents, such as trusts and health care proxies, generally work as well as originals, so it's less vital that we hold them for safekeeping. In fact, even wills are often less important than they were in the past as people avoid probate through trusts, beneficiary designations and joint ownership.