Ethics of Retaining Wills

The Committee on Legal Ethics and Professional Responsibility of the Pa. Bar Association has issued Formal Opinion 2021-300 (3/5/2021), “Ethical Considerations for Lawyers Retaining Original Wills.” The opinion adopts and endorses New York State Bar Association Ethics Opinion 1182 (1/23/2020), “Disposition of Wills,” and concludes that, under Pa. R.P.C. 1.15, “lawyers must maintain original Wills until they (1) provide them to the client, the client’s executor or some other person authorized to possess the Will, (2) are notified that the client no longer needs the Wills to be stored (such as when a client drafts a new Will), or (3) are authorized to dispose of them by statute, rule or some other procedure.” (Capitalization in original.)

The opinion does not identify any “statute, rule or some other procedure” by which a lawyer might be able to dispose of an original will in his or her possession.

The opinion suggests that lawyers retaining original wills and other documents take steps to maintain current contact information for clients, and to consider whether to continue storing wills or to advise clients about alternative methods of storing and safeguarding documents.

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