Does Your Attorney Keep Your Original Will?

Hopefully Not Anymore, and Why That’s a Positive Thing.

My clients are sometimes surprised to learn that it is no longer common practice for Washington attorneys who prepare wills and other estate planning documents to retain the originals in their possession on behalf of their clients. In fact, it has been my experience that the generation of attorneys for whom this practice was the norm are now mostly retired. These days, the Washington State Bar Association’s document retention guidelines specifically advise against the practice of retaining original documents and instead encourage attorneys to entrust their clients with looking after their original estate planning documents.

But that’s not to say that original estate planning documents cannot still be found in the dusty recesses of law firms all over the state. And therein lies the problem with this practice. To this day a great many original estate planning documents persist, unclaimed, in the rickety filing cabinets and faded cardboard boxes of Washington’s law offices, many completely forgotten, the rest in danger of being forgotten the longer they remain there. Any estate planning attorney who has been practicing for more than a few months will probably be well acquainted with the task of hunting down an old original from their office’s long term storage, or trying to help a client track down an old original in the files of another law office. As you may imagine, this can be a time-consuming task. And sometimes this task is an exercise in frustration and even impossibility, particularly when the originals in question were prepared by a retired attorney who cannot be contacted. Did that attorney reach out and return the originals before retiring? If not, did they entrust their files to another attorney? If so, who might that be and what happens if that attorney has also since retired? Hopefully every attorney in the chain of custody of an original was well-organized, otherwise the trail may go cold.

One can see how it would be very helpful if all estate planning attorneys uniformly adhered to a policy of not retaining originals and instead entrusting clients with responsibility for their own documents. This would remove a great deal of uncertainty when it comes to tracking down the whereabouts of original documents.

Thankfully, I find that that the younger generation of Washington estate planning attorneys, myself included, are committed to a new norm: entrust clients with safekeeping of their own originals, and equip them with the guidance and tools necessary to do so successfully; doubtless many of us wish to be kinder to our future selves and colleagues by reducing, rather than adding to, the number of original estate planning documents that have taken up permanent residence in our offices.