The New York State Bar Association’s Committee of Professional Ethics recently released Opinion 1182, which advises that a lawyer may not dispose of the wills of testators whose locations are unknown. Will
The Committee advised that wills constitute property and that, as such, the lawyer must safeguard the wills indefinitely to remain in compliance with the state’s ethics rules, unless the law affords the lawyer some other avenue to file or otherwise dispose of the wills.
Opinion 1182 was issued in response to an inquiry from a lawyer who is in possession of over five hundred wills whose testators’ whereabouts are unknown to the lawyer and cannot be discovered through due diligence. Notably, the lawyer prepared some of these wills, but most of them were obtained through the acquisition of other firms. In fact, some of the wills came from lawyers who had themselves acquired other law practices. Among the five hundred wills were some that were prepared over seventy years ago.
In an attempt to find information about the wills’ testators, executors, or beneficiaries, the lawyer conducted a search of office records, the internet, and the Surrogate’s Court in the county where the lawyer’s office is located. These efforts proved to be unsuccessful; the Committee agreed that the prospect of finding anyone is remote.
Nonetheless, the Committee advised that the lawyer must maintain possession of the wills, regardless of whether he acquired some of the wills when he took over the practices of retiring lawyers.
However, the opinion does note that the lawyer may transfer the wills to another law firm or seek court permission to dispose of property in accordance with law.
Read the full New York State Bar Association’s opinion here.
