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New York Lawyer Has to Keep 500 Wills Indefinitely

Jan. 24, 2020, 5:20 PM

A New York lawyer who has more than 500 wills where the testators’ locations can’t be determined with due diligence has to hold onto them indefinitely, the state bar association said.

In such situations, a lawyer “must safeguard the wills indefinitely unless the law provides an alternative,” Thursday’s advisory opinion said.

The lawyer prepared some of the wills but came into possession of most of them via several law firm successions, the opinion said. Some are more than 70 years old, it noted.

A search of office records, the internet, and the surrogate’s court in the county where the attorney’s office is located to find information about the testators, executors, or beneficiaries has been fruitless, the opinion said.

The lawyer would like to get rid of those will for which it seems unlikely to ever find out more, it said.

A will is a piece of property that lawyers must safeguard, the committee’s opinion said. According to the committee, this is the first time it has addressed the issue of testator-less wills and state ethics rules don’t provide guidance.

But opinions that have addressed the issue say that a lawyer has to hold onto the wills indefinitely unless the law provides guidance, it said.

In New York, lawyers can file original wills with the surrogate’s court if they come up empty-handed after a diligent search for a client, the opinion said. But they have to notify clients in writing, “addressed to their last known address,” it said.

The opinion is N.Y.S. Bar Ass’n Comm. on Prof’l Ethics, Op. 1182, 1/23/20.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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