When in Doubt, Don’t Throw It Out

In a recent ethics opinion issued by the New York State Bar Association Committee on Professional Ethics, the committee addressed whether a lawyer may dispose of wills when the testators’ locations and/or circumstances are unknown, a question that the New York Rules of Professional Conduct don’t explicitly answer. Its response? A hard no.

The inquiring lawyer possesses over 500 wills where the testators’ whereabouts are unknown and/or can’t be discovered with due diligence. Most of the wills, some of which were prepared more than 70 years ago, came to be in the lawyer’s possession by acquiring practices of other lawyers (some of whom themselves acquired those wills by reason of acquiring practices).

The Opinion

Despite diligent efforts using various resources such as office records, the internet and the relevant Surrogate’s Court, the lawyer thus far has been unable to track down information about the testators, executors or beneficiaries. Despite accepting the lawyer’s assertion that “the prospect of discovering the information is unpromising,” the committee, in Ethics Opinion 1182, determined that the wills constitute a piece of property, one which a lawyer “must safeguard indefinitely unless the law provides an alternative.” Despite not having its own precedent on the issue, the committee cites other opinions that came to a similar conclusion on the matter.  

The committee also mentions that New York does allow lawyers to file original wills with the Surrogate’s Court if they’re unable to locate a client despite a diligent search, so long as they notify the client in writing at his last known address—but of course, that course of action will entail paying filing fees. It also notes a lawyer may always seek court permission to dispose of property in accordance with the law.  

Get With the Times?

The law in this regard seems a bit antiquated, as we are now in the digital age and electronic wills are here to stay. Perhaps the law will eventually be amended to allow wills in such situations, where a significant period of time has elapsed, to be scanned in and digitally stored on the firm’s servers and the paper versions to be discarded, so as to eliminate the burden of physically storing them.