What happens when your attorney retires, dies, or moves away? What happens to your Will if it's stored at the law firm? Like the old USPS ads, "Don't make your mail come looking for you," it's the same with your estate planning documents. Losing track of those documents could be disastrous for your family.
Here's a scenario of how things could go sideways:
After his wife passed
away 20 years ago, Robert engaged a local attorney to have a new Will drafted. The attorney kept the original at his firm and gave a copy to Robert. A few years later Robert moved. Now Robert has died, leaving three children,
none of whom could find Robert's original Will. The children looked up the
attorney and discovered that he had retired a few years ago, his whereabouts unknown. The law firm had been closed and there was no one around who knew where the file went.
Unbeknownst to the children, when the attorney was getting ready to retire, he had made efforts to contact Robert in order to return his files, including the Will. But since Robert never gave the attorney his forwarding address, the attorney was unable to reach Robert. No one knew where the Will was or where the attorney kept his files.
Robert's children could not locate the original Will and only had a copy of "a Will." Two of the children believed that the copy was not of the latest Will and they contested it in court, believing that that there was a newer Will. But since the children did not have the original, executed document to submit to probate, they became embroiled in a protracted legal battle that spanned over a year, with court and attorney fees that consumed a large portion of the estate assets. The court ultimately did not honor the copy of the Will as Robert had intended, and applied the laws of intestacy instead.
This administrative dumpster fire was just a hypothetical, but similar cases have played out for real in many jurisdictions. There's a lot of blame to go around in the above scenario, but the obvious culprit is lack of communication by both the attorney and the client.
Robert's attorney should have more clearly stated his file retention policy (typically 6 years or more after closing the matter), and informed Robert of what happens when the attorney retires or dies. Many attorneys store client documents, and those attorneys often set up their calendars to trigger followup calls to their clients from time to time. Some attorneys make contingency plans to transfer custody of files to a partner after they have ended their law practice.
When retiring, if the attorney was faced with holding a client file and not having an address to send it to, he could have deposited the Will for safekeeping with the probate court in the county of Robert's last known address. Every county in Minnesota offers this service for a small fee. The children or personal representative would likely think to look there.
Robert dropped the ball, as well. He should have contacted his attorney to give his new mailing address. Robert could also have asked for his documents to take with him before the move. In any case, 20 years is a long time to not update an estate plan. Robert should have talked to his attorney to make sure it still reflected his wishes and family structure, which also would have been an ideal time for the attorney to discuss file retention choices.
Steps to safeguarding your estate plan:
- Make sure that your attorney has your up-to-date contact information if you move or get new phone numbers or email addresses.
- Keep your original estate planning documents in a secure location, such as a home safe or safe deposit box. Make sure your family members and personal representative have access to those documents.
- If you choose to let your attorney take custody of the originals, set up a plan for your family members to obtain them when you become incapacitated or die. A Letter of Instruction is a good way to direct your children to the documents. Ask your attorney about the law firm's retention policies--how long do they store files, and what happens to files when the attorney retires or moves.
- Revisit your estate plan every few years or so, or if any major life changes occur, such as marital status, new children, new assets, moving, etc.
* * *
Contact a qualified attorney to ensure that your estate plan still responds to your needs and the needs of your family.