Do You Keep Original Wills? Best Practices Say No

If you have ever wondered what to do with original wills, consider the following best practices to help you decide.

Don’t create your own problem:

Holding on to original wills can leave you or your successor with boxes of confidential documents, expensive to safeguard and difficult to return. It doesn’t take long for a practitioner to accumulate thousands of original wills. Once you have them, it’s your duty to safeguard or return them. A lawyer must identify, label, and appropriately safeguard any property of clients. RPC 1.15A(b)(3).

WSBA has taken calls from practitioners ready to close down their office, young attorneys taking over someone’s practice, or loved ones trying to clean out a partner’s office, asking what to do with boxes of original wills on site or in storage.

It can be hard to return the files:

When the time comes to clean out an office or move, many clients may have moved, died, or redone their wills. The client’s will is the client’s property, so it can be a huge burden to locate the client and return the will back to them confidentially. It’s a difficult balancing act to search for a client without revealing the nature of your representation. A lawyer shall not reveal information relating to the representation of a client unless the client consents or the disclosure is impliedly authorized. RPC 1.6(a). If the file has been sitting for a number of years, searching for the client can be an expensive and time-consuming process of phone calls, Internet searches, and death index searches. Even if you confirm that the client has already died, you may need to contact the personal representative to determine if they need the original will.

How to avoid this dilemma in the future:

The Guidelines for Retention of Client Files on the WSBA website recommends returning original wills to the clients after signing, or filing them with the local court of proper jurisdiction. Upon termination of representation, a lawyer shall take steps to protect a client’s interests, such as surrendering papers and property to which the client is entitled. RPC 1.16(d). Most court clerks have a will register which will store original wills for a modest fee. A good practice is to send clients home with a copy of the original, save a copy for yourself, and send the original to the court for filing. Although a copy must still be maintained confidentially, it can be destroyed in accordance with your general retention policy.

Sandra Schilling. Sandra Schilling is an attorney with the WSBA Office of General Counsel. She supports the WSBA Ethics Line. Attorneys with concerns about legal ethics can call the Ethics Line (206-727-8284 or 800-945-WSBA, ext. 8284) and receive help analyzing ethical issues. For other issues, Sandra can be reached at SandraS@wsba.org and (206) 239-2118.