Lawyer who can't find testators for over 500 wills can't toss documents, ethics opinion says
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A New York lawyer who possesses more than 500 wills, many of them obtained by acquiring others’ law practices, can’t dispose of the documents after a fruitless search for the testators—people who have made wills—according to an ethics opinion by the New York State Bar Association.
Some of the wills were prepared more than 70 years ago. Some were obtained from acquired law practices that had themselves obtained the wills from acquired practices.
The lawyer has been unable to find the testators, executors or beneficiaries through a search of office records, the internet and the county surrogate’s court.
The lawyer must retain the wills indefinitely “or act as the law may allow,” the opinion says. The opinion notes that lawyers can always seek court permission to dispose of property in a way that accords with the law.
The opinion also refers to advice from a state bar committee that says lawyers can file wills with the appropriate surrogate’s court. Some county bar associations also maintain will registries where the wills could be filed. The clients should be notified of the filings in writing at their last known address, the bar committee said.
The ethics opinion sums up its advice this way: “A lawyer may not dispose of wills, whose testators’ locations and/or circumstances are unknown. The wills constitute property, and the lawyer must safeguard the wills indefinitely unless the law affords the lawyer an avenue to file or otherwise dispose of the wills.”