Lawyers Must Retain Original Wills Indefinitely?

The New York State Bar Association has released an ethics opinion stating that a lawyer may not dispose of wills even when the testators’ locations and circumstances are unknown, and that the lawyer must safeguard the wills indefinitely unless the law provides an alternative. New York State Bar Association Committee on Professional Ethics Opinion 1182 (1/23/2020).

A few comments:

  • The opinion discusses the possibility of filing wills with the Surrogate’s Court, which is allowed by statute in New York. There is no comparable statute in Pennsylvania, and there is no authority requiring (or allowing) a Register of Wills to accept a will when the testator might be living, might have died outside of Pennsylvania, and might have revoked the will by a later will.
  • The opinion relies on Model Rule of Professional Conduct 1.15, which relates to safeguarding property. But is the “property” the physical will or the testamentary intent expressed in the will? At a recent southeast Pennsylvania regional meeting of the American College of Trust and Estate Counsel, a fellow of the college reported that her firm, after repeated attempts to contact the testator, and after a suitable period of time, will destroy the testator’s will but will also create a contemporaneous record of the destruction of the will so that a copy of the will (saved electronically) could be admitted to probate in the unlikely event that the will was ever actually needed.
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