Most estate planning lawyers are responsible for keeping their customers' original wills and other papers.
Lawyers do this for two reasons:
For starters, they are often better able to keep the originals secure and accessible when required.
Second, there is the hope that, when the time comes, the client's family will return and hire the attorney or their company to assist with the probate of the client's estate.
However, retaining original papers poses various problems that should be discussed and answered.
These four questions will be addressed in this article:
How long does the legal firm have to keep the original will?
Is it a lawyer's responsibility to find out when a client dies?
Do attorneys have to offer to keep original wills and other documents?
When a lawyer retires, what happens to an original will?
Where Can I Locate the Will of a Loved One?
Your loved one may have already notified you if you're a designated party in their will.
As a trustee or executor, you may have obtained a replica of the will or been informed of its whereabouts.
Most individuals maintain a will in a secure location, such as the following:
Deposit boxes at a bank
A safe at home
With the assistance of an estate lawyer
When you have to locate a will, contact your state's Register of Wills or probate tribunal to verify that the will has been documented.
In Maryland, for instance, for a one-time charge, a person may submit a will to the court. It is then sealed and held until it is returned to the individual who submitted it or their agents after their passing.
Following the death of a loved one, their will is normally submitted to their state's probate court.
Wills Filed to the Probate Court Are Part of the Public Record
Although you may not be able to look at the complete will, you may request to examine whatever papers have been submitted to the probate court.
Who Receives Copies of a Will?
The state determines how wills are administered and processed based on where the dead individual resided.
In most circumstances, wills are probated after an individual's passing.
If the individual registered their will, their state would certainly inform their heirs and any executor appointed.
If no executor is designated, the state can choose one, or the heir may be held accountable.
Executors are typically the individual who selects who receives a duplicate of the will. Most of these will be those who are directly touched by its conditions.
This might include:
The executor of the estate
Trustees
Previous beneficiaries or heirs
Individuals with medical POA
A bookkeeper
Tax authorities at the state and federal levels
How long does the legal firm have to keep the original will? The answer is indefinite unless the firm and the customer have another agreement.
Lawyers must keep these documents safe, even if they have lost track of the customers.
Is it a Lawyer's Responsibility to Find Out When a Client Dies?
No, it is not.
In smaller locations where the lawyer is more likely to learn of a client's death, the lawyer will inform the family that they have the original paperwork.
If a lawyer learns of a client's death but is not hired to help with probate administration, the will must be filed with the relevant probate court within 30 days of the client's death.
However, in the absence of information about the death, they are not responsible for investigating death records for all of their customers to determine whether they have died.
Increasingly, attorneys are declining to provide this service. It turns out to be more bother than it is worth.
Lawyers and legal firms are increasingly deciding that they do not want to take on the obligation and cost of maintaining original papers for their clients, particularly if they are becoming paperless in all other respects.
When a Lawyer Retires, What Happens to an Original Will?
If the lawyer is part of a larger practice, the firm will keep the original papers.
However, solo practitioners might relocate their will files to their garages, continuing to produce originals when required for as long as they can.
In some circumstances, the retired attorney dies, and their spouse or children throw away the papers if they cannot find another firm to take them on.
To reduce the number of paper files in law offices, many lawyers now only keep original wills and durable powers of attorney for clients.
Copies of other original papers, such as trusts and health care proxies, often function as originals, so retaining them for protection is less important.
In reality, wills are becoming less necessary as individuals bypass probate via trusts, beneficiary designations, and joint ownership.
Related: Do Wills Expire? 6 Things To Know
What Happens if a Dead Person's Original Will Cannot Be Found?
If a will is lacking because the dead person revoked it on purpose, a previous will or intestate succession rules will decide who inherits the deceased person's estate.
If a will has been lost because it was housed in a vault damaged in a fire, the court may take a copy (or the lawyer's computer file or draft). Nonetheless, the court will demand proof that the departed signed the authentic correctly.
Check desk drawers, file cabinets, the boxes in the back of the attic, floor or wall safes, glove compartments, garages, automobile trunks, and even inside pages of a magazine and beneath mattresses!
Second, determine if the departed had a safe deposit box.
Keys to a safe deposit box are often huge, made of silver or aluminum, and marked "do not duplicate."
When you come across such a key, contact every bank where the departed had a savings or checking account to identify the location of the safe deposit box.
Know that the bank may need a court order before granting you the contents in the box.
Investigate: see if you can find the attorney who created the will's letterhead or business contact info.
Review all checkbooks for checks to legal firms. You may have to scour many years of records since individuals seldom modify their estates.
If you are unable to locate information on a lawyer, get in touch with any other counsel that the individual hired, such as a CPA, financial planner, or insurance agent. They may have known the deceased's attorney.
Fifth, speak with the deceased's friends. They are often witnesses to wills or may have been informed where the document was stored or who created it.
Lastly, contact the court in the county where the dead resided in the state. If the will were filed, it would be accessible for public inspection.
If you are still unable to locate the will, you should consult with an attorney to decide how the estate will be resolved without a will.
With the difficulty of locating a misplaced will, you should notify the deceased's lawyer, as well as their appointed trustee, executor, and other trustworthy persons, of the whereabouts of any original estate planning papers.
If you store your original will in a bank deposit box, ensure the box is owned by your living trust (so your successor can access the box after your death without a court order).
Suppose you store your original will in a safe in your home. Make sure your family knows where to obtain the key or the combination if you die and the box is shut.
It would help if you informed people of the whereabouts of your will. Otherwise, your efforts in creating the will might be in vain. An original will that can't be discovered is the same as having no will.
Some Recommendations Regarding Original Documents
It is critical to keep paperwork in a secure, easily accessible area.
You need immediate access to original records, particularly in medical emergencies.
For instance, suppose you are the agent designated in someone's power of attorney or advance directive. You must use the power conferred in the agreement to make quick and important medical choices one weekend.
However, the original records are kept at an attorney's office and are not accessible to you.
Having the originals in a convenient location might minimize a delay in getting someone the treatment they need.
How Trustworthy Can Help
Many individuals wonder where to keep their last will once they've written one. Before putting it in a plastic bag in your freezer, remember that you have other choices for carefully storing your will.
Trustworthy provides a safe, accessible place to store your estate planning documents. You can rest assured that your family will have access to your final wishes when you sign up for a free 14-day trial.
Trustworthy is an online service providing legal forms and information. We are not a law firm and do not provide legal advice.
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