{Read in 8 Minutes} As a Trusts and Estates Attorney, I frequently write Wills for clients. Wills are very important legal documents. They affect most of a client’s critical legal interests upon death: inheritance, family, friends, and the ongoing legacy for which they will be remembered. After the client dies (spoiler: we all do, eventually!), the Executor nominated in the Will offers the Will for probate in the Surrogate’s Court. So, what happens to the original Will between when the client signs it and when the Executor offers it for probate?
There are lots of choices. First, it’s important to remember that the Surrogate’s Court will want to see the original Will. That is why custody of the original Will is so important. While the Court can probate a photocopy of the Will in certain circumstances, it is often an uphill battle and best to be avoided. Know where your original Will is and make sure your Executor knows that, too.
There are four common things that people do with their original Wills. First, they might hold on to it themselves. Second, they might give it to somebody else. Third, they might leave it with their attorney. Fourth, they might file it with the Surrogate’s Court during their lifetime. As I discussed in a prior article, they all have pros and cons. But here, I want to focus on the third option. Do clients leave their Wills with their attorneys, and if so, what are the advantages and disadvantages of doing this?
I have been writing Wills for people for over twenty years now, and looking at the numbers, easily 70-80 percent of all clients choose to leave their original Wills with me. However, I am always very quick to caution clients about the potential drawbacks of doing that. What are they?
Your attorney has a financial interest in holding on to your original Will.
Why? Your attorney knows that your nominated Executor needs to come and see the attorney to collect the original for probate. In a city like New York, where there are more attorneys than cockroaches (please don’t tell me how many cockroaches there are in New York — it might depress me), attorneys have to be competitive — and many consider this a ticket for future business. Knowing that a nominated Executor has to come to see the attorney to pick up the original Will makes it more likely that the Executor retains that attorney as opposed to somebody else.
It’s important that the nominated Executor knows that the attorney is holding the Will.
The attorney may be the most responsible person in the entire world but if the nominated Executor does not know the attorney’s name or contact information, how are they ever going to know where the Will is?
With our clients, we always write letters reminding them that we are holding the original, and all paper and digital copies of the Will are stamped with a reminder that we are holding them. Not all attorneys will do this, however.
What if you or your Executor lose track of the attorney?
Guess what? Attorneys die. Attorneys move. Attorneys develop diminished capacity. What does this mean if your attorney is holding your original Will?
The answer is that the attorney has an ethical obligation to let the client know what is going on with the custody of their Will. For example, if I were to retire, the rules of ethics in New York State require that I locate all of the clients whose Wills I’m holding. If there are any clients I cannot find after a diligent search, I have to file their Wills at the Surrogate’s Court of their last known residence at my own expense.
Same thing if I were to die. The Executor of my Estate would have to do this as part of administering my Estate.
But obviously, not every attorney takes this as seriously as I do. Particularly attorneys who don’t make a large portion of their practice trusts and estates and may be unaware of these rules.
So, those are the disadvantages, what are the advantages? Well, the advantages can be twofold.
First, it can ensure that a client’s Executor has a good lead on who to call.
For example, let’s say that the nominated Executor doesn’t work with an attorney often and may be faced with a listing of thousands of potential attorneys from which to choose. Knowing that the client trusted this attorney above other attorneys may comfort the Executor to make the correct decision when choosing that particular attorney. That said, it is also not a good idea to leave your Will with your attorney if you were not pleased with the service the attorney provided when drafting the Will!
Second, the attorney who wrote the Will often acts as the repository of helpful information that the Executor will need to distribute your Estate.
This knowledge eliminates much detective work that the Executor may need to do later. Example: as part of the Will-drafting process service at our firm, I always ask the client for information on their next-of-kin. As the Executor will need to identify all of them, this can save lots of time (and potentially thousands of dollars in genealogy fees) after the client dies. Similarly, I ask the client for a list of their assets. If the Executor is unfamiliar with the client’s assets after they die, my notes will offer an excellent running start as to where to identify and find these assets.
So, there are pros and cons to doing this. There is no right answer for everybody, and people must decide what they are most comfortable with and what suits them best.
Finally, always remember that your Will is your personal property. The attorney has no right to keep it without your consent, and if you demand it back at any time — which is your right — the attorney is obligated to return it to you. So, if you left your Will with an attorney with whom you no longer have a relationship, don’t hesitate to ask for it back.
For more information on this topic, please contact me.