I don’t feel like spending $450 asking my lawyer this question as it does not pertain to me.
An aquaintence has a realative who died. They know he had a will made out but can’t find it. They looked up the attorney they believe made out the will and found out he not only retired but died 6 years ago. The attorney was an independant, did not work for a firm or anything. The will had not been filed with any court. So the only person that would have a copy of the will would be that attorney. This all just happened and they;d like to find that will before things go to probate.
So what happens to a lawyers case files when they retire and later die? Are they just lost or do they pass them off to some other lawyer? And how do they find out? Would the state bar association be of any help.
The state bar may be of assistance, but you may be making an error in confusing « drafting the will » and « keeping the will. » I know it’s a staple of old English murder mysteries that the family solicitor kept the will in their office, but there’s no obligation on the lawyer to do so.
After the will is signed, the lawyer can give the will and copies to the testator, tell them to keep them in a safe place, and give them the bill.
I’ve read a few articles in lawyer mags about lawyers who did the cost-benefit analysis of keeping the will for the client, and concluded that the increased liability of being a storage unit for important client documents wasn’t worth it.
Isn’t this one reason why wills are sometimes filed at the court house?
They’re sure he had a will but can’t find it. Wasn’t in his personal effects, files, or even a safe deposit box he had at the bank. This can’t be the first time something like this has happened.
More interestingly, what happens if a year or two after the whole estate is settled by the default law (or an older will) someone finds the latest will, say sandwiched between the pages of a book from his house or in a photo album? does the estate get re-opened? Is there a statute of limitations typically?
For lawyers, I assume there’s the possibility that a copy of the will may be kept in the lawyer’s client files, simply as a record of their work done, but no guarantees that the lawyer is a repository of that?
My lawyer has a copy of my (and my wife’s) will. BUT it is just that, a copy of what we had before it was signed and notarized. He keeps a copy in case our copies get lost or destroyed and he has all the information to make a replacement. I am guessing now it would be stored electronically instead of a physical copy. Would this copy hold up in court? I don’t know but would give an idea of my intentions when I pass away.
My family has used the same firm for over 60 years and when my mom passed away they gave me my parent’s file (actually a box) and interesting reading about events in their life I didn’t know about or forgot. As I said before it is all probably now stored electronically.
As for the OP’s problem you would think if the lawyer retired he would have referred customers to another lawyer. I would contact another firm that was in business at the same time and see if they might know who got his clients.
When my dentist retired, he sold the practice, including the building and the customer base to another dentist. I assume the new dentist also received the patient records. Does the same thing happen when a lawyer retires or passes away?
There will be 50 answers for the 50 US states, and I’m sure many additional answers in other countries. But I did find this:
Most states do not impose a statute of limitations if you want to challenge a will because you’ve located one written after the date of the one that’s been admitted to probate. Generally, the four-year time period, beginning with the testator’s death, would apply in this case. You’d have that amount of time to submit the new will for probate. Doing so automatically challenges the first will. Most states do not consider this a will contest, so the two-year time period is generally waived.
Are they, while the person is still alive? Is this really a thing? I have not heard of this as a practice. If it is a thing, I might want to do that myself.
I have read that sometimes lawyers will send the client’s documents to the client when they retire.
Has the relative looked completely through the house? I recently helped someone going through something similar and we eventually found the original will in a cardboard box in the garage. It wasn’t in expected places like the desk or filing cabinet. But when you consider that the will may have been written decades ago, it’s not surprising for it to be tucked away in a box from a long ago move.
I’m still working on cleaning up my father’s files. He left most behind at the firm he was a partner with for 30+ years, but he had a few private clients after he went as in house counsel at his primary client. I’ve been shredding them as they have a) been inactive for at least 5 years and b) I don’t want to violate privilege by looking at them and trying to track anyone down.
I did come across my uncle’s original will that my dad was the executor for and I returned it to my cousin in case he needs it for nothing.
Some jurisdictions allow this. For example, in Texas you can deposit your will with the County Clerk. (Bexar County instructions, e.g.). Other jurisdictions don’t, so check with your local courthouse or a probate lawyer in your area.
A similar situation happened in my in-laws’ family: guy died in a house fire, and his will was presumed to have been in the house. A relative had a photocopy, so the lawyer filed a petition to probate a destroyed will and submitted the photocopy as evidence. None of the other heirs objected, so the judge accepted it. If somebody had objected, my understanding is that there would have been a hearing for the court to take evidence as to why/how this photocopy was or was not an accurate copy and why the original wasn’t available, and make a decision.
In Kansas, the usual statute of limitations is six months, with a couple of very narrow exceptions. Finding a later will by accident hidden in a book is not one of those exceptions. Other jurisdictions, as noted, will vary.
I’d ask the local bar association; any active files would probably have been passed off to another firm, and that other firm may know what happened to inactive files. The state will have rules or guidelines about how long files must be kept; five years is a common rule, but it varies by jurisdiction and type of case. I know in my area it is not common for lawyers to retain a signed copy of the will on behalf of clients, but that too can vary.
Kinda interesting question, to which I do not know the answer. I would ask the state/local bar association where the lawyer practiced. I wonder what the Rules of Ethics says about maintaining your files, and transferring them upon retirement - but I disliked Ethics when in law school, and am not about to start researching them now. My WAG is that a lawyer should inform clients he/she is retiring, give certain docs to the clients, and destroy the rest. But that is just a WAG.
My short answer is, a client ought to be aware of whether their lawyer is still alive/practicing, and ought to make sure they have copies of important documents. If a client fails to do so, they - and their heirs - are likely screwed.
Recent kinda relevant situation we faced. My FIL died, w/o a will, and a complicated estate w/ multiple families. We knew there was one insurance policy that my wife and her 2 sisters were supposed to be the beneficiaries of. Somehow or another, my wife discovered the name of a lawyer who did some work for FIL years back. She called him, and the guy said he had some files related to the insurance policy. He agreed to give them to my wife - I’m not sure whether it was more important to him that she was a daughter of the client, or that she is a lawyer. But he made her sign a receipt.
In the files, in addition to the trust papers, was a signed will from the 70s. As an attorney, my wife was obligated to file that with the clerk - which she did. If he had not given the files to my wife, HE would have been obligated to file the will. So he was essentially passing off a hot potato.
I do not believe a probate case was ever opened. Nor was any other will filed. If my wife had not tracked this lawyer down, no one would have ever known about this will.
It can be, but it’s optional for things like a will. The state wants documents filed that relate to taxes, like corporations and property ownership. Contracts between individuals typically don’t need to be filed. However if you want, you can typically file things like a will, power of attorney, living wills, etc. with your county records office. It will be added to the public records database. I suspect most people don’t do that because they don’t want them publicized and it makes it more difficult to change them later on.
People can save a lot of trouble for their heirs if they keep these kinds of documents in an obvious place–like a fireproof safety box. Not only will it protect the documents from environmental damage, but it will make it very obvious where the heirs should look for them. They’ll open the safe first instead of wasting time rifling through 50 cardboard boxes filled with random stuff.
So, acquaintance told me today they called the bar association and they were of little help. There is no tried and true practice of what to do with files when a lawyer retires or dies. No standards at all.
This is a particularly tough case as this lawyer was independent with no partners.
I suggested maybe trying to contact the deceased lawyers surviving family or the lawyer that handled his probate if any.
The relative that died, BTW, was very old and senile. So who knows WTH he did with his will.
This is what happens in Illinois, or did as of 2019.
(You find the WEIRDEST things in boxes stored in garages. A while back, I was at an estate sale, and after I got home, I found someone’s Ph.D dissertation, and did locate him - he had probably never lived there, either - but decided that he would have a copy if he wanted it, so I used it as scratch printer paper. Now, a will? That would have been another story.)
That is nice, but I don’t see the basis for imposing a legal requirement for the reporting obligation on the dead lawyer’s estate. What are the penalties? What if he dies intestate, or all of his property is in trust or payable on death? The Illinois ARDC claiming a grieving widow has some obligation provides little protection to the dead guy’s clients.
Of course, the ILARDC is pretty good at making hollow pronouncements.
