February 2005

Wills, Wills Everywhere, and All of Them to Keep?

A New Way to Fulfill Your Ethical Duty of Safekeeping Original Wills

by Richard Cunningham and Christopher Sutton

Many of us have prepared wills during the course of our practice of law. Often we retain the original will for our clients’ safekeeping. There are many good reasons to retain original wills: (1) we can maintain a connection with our clients; (2) clients will not lose the will, inadvertently destroy it, or write on it; (3) we have our contact information on the copy of the wills we give our clients; and (4) perhaps (although we sometimes do not want to admit it) we can eventually assist the personal representative with the future probate. However, as our collection of original wills grows, so do our ethical duties to preserve them.

Problem: Over the course of a long career, a lawyer accumulates a large number of client wills. As the lawyer is preparing to retire, he realizes he should return the wills to the clients but, after a diligent search, he is unable to locate some of them. What does he do?

Problem: Lawyer purchases the practice of another lawyer and discovers two filing cabinets full of original client wills; one will is yellow and dated August 7, 1920. What should the lawyer do with these wills?

Problem: Lawyer passes away and a large number of original client wills are in his office. How should his personal representative handle these wills?

Rule of Professional Conduct 1.14 requires us to protect our clients’ property when it is in our possession. To satisfy that duty, some of us place the original wills in a bank safe deposit box, others keep them in fireproof safes on site, while others have them stored by storage professionals. However, some of us do not realize that our duty under RPC 1.14 requires us to hold the wills indefinitely, which can potentially lead to problems as we continue our practice and the number of wills we hold grows.

After his first three years of private practice, Chris Sutton, now serving as the WSBA professional responsibility counsel, realized the weight of the responsibility and duties required for the storage of his clients’ original wills. At that time he was renting three large safe deposit boxes to keep original wills. He realized that he was going to need even more space as his practice developed. It made little sense to continue holding original wills for an indefinite period, and he decided that he would no longer hold original wills for clients. He contacted his current clients, returned their original wills, and never kept another one. In retrospect, Chris believes that during his 25 years of private practice that decision was one of the best decisions he ever made.

After six years of serving as the WSBA professional responsibility counsel, Chris recognizes just how wise that decision was. One of Chris’s duties at the WSBA is to answer the WSBA Ethics Line and assist fellow lawyers in solving the day-to-day ethical dilemmas we all face in our profession. A significant number of those calls identified problems that arose from lawyers retaining their clients’ original wills. In some cases it was a retiring lawyer asking what to do with the original wills. At other times a deceased lawyer’s spouse, child, or partner would call asking what to do with the original wills in the lawyer’s office.

The advice was not what they wanted to hear. Even if clients ultimately cannot be located, RPC 1.14 requires that their wills be maintained indefinitely. Since the lawyer assumed the ethical duty of safeguarding client property, that duty continues after retirement and perhaps even after death. In the case of death, a deceased lawyer’s personal representative likely would “step into the shoes” of the decedent and assume the duty of safekeeping original wills. Although there is no Washington case law directly on point, it is the authors’ opinion that a court would likely find that the personal representative of the estate assumes the deceased lawyer’s duty to safeguard client documents and would require the use of estate assets to locate the lawyer’s clients and return the original wills using reasonable efforts, including the hiring of staff, the payment of mail, notice by publication, or other possible methods to reach this result.

Members of the Bar became more and more concerned with the problems associated with the duty of safekeeping original wills. The WSBA Board of Governors (BOG) formed a task force to develop a solution that was practical and not too expensive. The task force, led by Barbara Sherland of Stoel Rives LLP, consisted of WSBA staff lawyers, lawyers from the Real Property, Probate & Trust Section, representatives from the Administrative Office of the Courts, representatives from the Washington Secretary of State, other interested lawyers, and a citizen member. The task force met for over a year to address these issues and draft proposed legislation. They sent the legislation to the BOG, recommending that the WSBA support the adoption of the legislation by the state Legislature. The result of this effort was the passage of RCW 11.12.265, entitled “Filing of original will with court before death of testator.”

As of June 2004, RCW 11.12.265 went into effect, allowing any person who has custody or control over an original will to deposit the will under seal with the clerk of any court having jurisdiction. The purpose of the statute is to provide a safe place to hold a testator’s will, addressing the certain problems associated with attorneys having original wills in their possession. The statute does not require all original wills to be deposited with the superior court clerk. You may continue to retain your clients’ original wills for safekeeping.

RCW 11.12.265 provides:

Any person who has custody or control of any original will and who has not received knowledge of the death of the testator may deliver the will for filing under seal to any court having jurisdiction. The testator may withdraw the original will so filed upon proper identification. Any other person, including an attorney in fact or guardian of the testator, may withdraw the original will so filed only upon court order after showing of good cause. Upon request and presentation of a certified copy of the testator’s death certificate, the clerk shall unseal the file. This section does not preclude filing a will not under seal and does not alter any duty of a person having knowledge of the testator’s death to file the will.

Under current Washington law, the superior court of every county has original subject matter jurisdiction over the probate of wills and the administration of estates. RCW 11.96A.040(1). Therefore, a Washington resident’s will may be deposited with the clerk of any Washington superior court. A deposited will is treated as a sealed document by the court clerk and without a court order can be released only to the testator. Any other person, including an attorney in fact or guardian of the testator, may seek a court order to withdraw the original will upon a showing of good cause. Upon request and presentation of a certified copy of the testator’s death certificate, the will may become a matter of public record.

A will that is deposited with the court clerk can still be challenged upon the death of a testator. The fact that the court clerk holds a will in its repository is not a determination of validity. A will must still meet the statutory execution formalities, and the testator must still have testamentary capacity.

The procedure for depositing a will with a superior court clerk may vary with each county. The following is the King County procedure:

In King County, a party wishing to deposit an original will of a living person must complete a Will Repository Cover Sheet (WRCS), which is available in the Clerk’s Office or on the Clerk’s Web site at www.metrokc.gov/kcscc/forms.htm. A filing fee of $20 is required to deposit a will in the Clerk’s Will Repository. An index will be maintained in the Superior Court Management Information System (SCOMIS) under the name and date of birth of the testator. Any other filing, such as of a codicil, also requires payment of the $20 filing fee. If a will is withdrawn from the Repository, it may be deposited again with payment of the $20 filing fee.

The testator may withdraw the will upon verification of identity. Removal of the deposited will by someone other than the testator requires a court order. A sample Motion and Order is available on the Clerk’s Web site. All pleadings filed relating to the repository must be captioned “IN RE THE DEPOSITED WILL OF (testator)” and should include the date of birth of the testator.

After the death of the testator, and upon request and presentation of a certified copy of the death certificate, the will will be unsealed.

The Clerk will retain deposited wills or the record of their withdrawal for 100 years.

See King County Superior Court Clerks’ Alert, June 9, 2004.

RCW 11.12.265 gives us a new tool to serve our clients’ needs and to manage our practice more efficiently. Remember, the statute does not require you to deposit your client’s original wills with the court. You may continue to hold them for your clients, or you may continue to have your clients hold their original wills. However, if you decide to continue to keep your clients’ original wills, remember that your ethical duty to safeguard them continues indefinitely. Let your clients know of the new opportunity to deposit their original will with the court in a private, safe, and secure manner. You will be maintaining your ethical duty to your clients without having the headaches of maintaining all those wills.

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Richard Cunningham received his J.D. and LL.M. in Taxation from the University of Washington School of Law in 2000 and 2001. He is a member of the WSBA Probate and Trust Section, serving on the editorial board for the section newsletter. He also is a member of the Estate and Gift Tax Committee of the WSBA Taxation Section, where he currently serves as the chair of the Washington Uniform Transfers to Minors Act subcommittee. He has authored articles for various bar publications.

Christopher Sutton is a graduate of the College of William & Mary and the Marshall-Wythe School of Law. He has been practicing law for over 30 years in many areas, including domestic relations, trusts and wills, and business transactions. He worked at the WSBA as disciplinary counsel for two years. Presently he is the professional responsibility counsel for the Bar Association and professional responsibility program manager. He also operates the Ethics Line and supervises the WSBA ADR Program.

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