WILL VAULTS - PROFITS CENTER OR MALPRACTICE TRAP? · Failure to return the will at the end of the bailment ... Will Vaults - Profits Center or Malpractice Trap? Chapter 33 2 H. Proving

WILL VAULTS - PROFITS CENTER ORMALPRACTICE TRAP?

©JAMES E. BRILLJames E. Brill, P.C.3636 Westheimer

Houston, Texas 77027713/626-7272

713/626-3606 (FAX)[email protected]

State Bar of Texas27TH ANNUAL ADVANCED

ESTATE PLANNING AND PROBATE COURSEJune 4-6, 2003San Antonio

CHAPTER 33

JAMES E. BRILL3636 Westheimer

Houston, Texas 77027713/626-7272

FAX 713/626-3606email [email protected]

Jimmy Brill is a 1957 University of Texas Law School graduate and a solo practitioner from Houston whosepractice emphasizes probate, estate planning, and real estate.

He currently serves as principal author and project director of the Texas Probate System first published by theState Bar in 1972, updated five times since then, and soon to be reissued as Texas Probate System - ThirdRevised Edition and has chaired the State Bar CLE and PEER Committees.

The State Bar honored him with its Presidents’ Award in 1978 and the Gene Cavin Award For Excellence InContinuing Legal Education in 1994.

He chaired the Law Practice Management Section of the American Bar Association and for two and one-halfyears wrote a monthly column for solo practitioners in the ABA Journal. He was inducted into the first classand elected as an initial trustee of the College of Law Practice Management and currently serves as its vice-president.

The College of the State Bar presented him with its 1999 Professionalism Award and he received theDistinguished Service Award for 2000 from the Estate Planning, Probate, and Trust Law Section of theHouston Bar Association.

He served as mentor to five women lawyers in their first year as solo practitioners and continued the group’smonthly meetings for an additional four years. This group became a model for the mentor program of the StateBar.

He was an organizer and continues to lead monthly meetings of a Houston group of lawyers now in its sixthyear known as Solos Supporting Solos. This informal group provides solos with an opportunity to meet fellowsolo practitioners in an informal setting.

Brill also is listed among The Best Lawyers In America, Trust and Estates Law.

Will Vaults - Profits Center or Malpractice Trap? Chapter 33

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TABLE OF CONTENTS

I. OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Scope of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. Why Would A Lawyer Hold A Client’s Will For Safekeeping? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. BAILMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. In General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. Nature of the Relationship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1C. The Lawyer’s Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1D. Breach of the Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1E. Types of Bailments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Gratuitous Bailment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. Bailment For Mutual Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

F. Duties of Lawyer Are Based on Beneficiary of Bailment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1G. So What? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1H. Proving the Client’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2I. Defending Against Client’s Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. SOME OF THE PROBLEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A. No Or Insufficient Bailment Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B. Proper Safekeeping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2C. Expense of Safekeeping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2D. Continuing Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2E. Firm Splits Or Dissolves Or the Drafting Lawyer Dies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2F. Trying To Return The Wills. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2G. Who Owns The Files? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3H. Depositing the Wills With County Clerk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. THE BIGGEST PROBLEM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A. A Continuing Relationship? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. Trying To Start Limitations To Run. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3C. An Ongoing Duty? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3D. The Effect of the Passage of Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4E. Another Ethical Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4F. Conflicts Of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4G. Risk Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4H. Completion Letter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

V. EXCERPTS FROM THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT. . . . . . . . . . . . . . 5A. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. Safekeeping Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5C. Ethics Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VI. HANDLING REQUESTS FOR DELIVERY OF ORIGINAL WILL AND OTHER DOCUMENTS . . . . . . . . . . . . 5A. Request By Testator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. Request By Someone Else. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5C. Probate Code, Sections 36D and 36E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


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VII. HANDLING THIRD PARTY REQUESTS FOR INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

VIII. WHAT TO DO WITH THE ORIGINAL WILL WHEN YOU LEARN OF TESTATOR’S DEATH . . . . . . . . . . . 6A. The Rubber Hits The Road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6B. The Testator Has Died. Now What? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

IX. AN INFORMAL QUESTIONNAIRE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

X. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ATTACHMENTS:Attachment One: Text of Probate Code, Section 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Attachment Two: Harris County Clerk Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Attachment Three: Comments From ACTEC Fellows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Attachment Four: Excerpts From Durable Power Of Attorney Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Attachment Five: Questionnaire for 2003 Advanced Estate Planning and Probate Course . . . . . . . . . . . . . . . . . . . . . 19Attachment Six: Selected Comments From Board Certified Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23


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WILL VAULTS - PROFITS CENTEROR MALPRACTICE TRAP?

I. OVERVIEWA. Scope of Article

This paper deals with issues arising when a lawyerretains possession of a client’s will.

B. Why Would A Lawyer Hold A Client’s Will ForSafekeeping?Although more altruistic reasons are frequently

given, the historical reason is to obtain an advantage inbeing hired to probate the will. Other reasons include:

1. Client does not have a safe place for keepingthe will.

2. Clients are pleased that someone else will beresponsible for safekeeping their wills.

3. Custom of the legal community. “Perhaps thecustom varies geographically, but I am notpersonally familiar with any firm in the NewYork area that does not routinely hold clientwills.” (Comment by New York City ACTECFellow.)

4. Avoiding inadvertent revocation by client whotries to save legal fees by making changes tothe original will.

5. Avoiding presumption of revocation when awill, last in the possession of the client, cannotbe produced.

6. Precluding unlawful destruction. If theLawyer has the will, an unlawful actor will beunable to destroy it, thereby gaining the upperhand.

II. BAILMENTS.A. In General.

The law of bailments applies to the delivery ofproperty for safekeeping. Retention of a client’s will isa bailment. The client is the bailor and the lawyer is thebailee.

B. Nature of the Relationship.Here the client delivers the client’s will to the

lawyer for safe keeping by the lawyer. By agreeing toretain the client’s will, the lawyer and client have enteredinto a contract that creates a duty for the lawyer tosafeguard the client’s will and to return the will orotherwise deal with that will as the client directs.

C. The Lawyer’s ObligationThe lawyer has an absolute obligation to return the

will to the client even without an express agreement to doso and without specific authorization, the lawyer may notdeliver it to a third person or otherwise dispose of it.

D. Breach of the Obligation.Failure to return the will at the end of the bailment

period is a conversion by the lawyer and entitles theclient to recover its value.

E. Types of Bailments.1. Gratuitous Bailment.

A gratuitous bailment is one that solely benefits thebailor – here, the client.

2. Bailment For Mutual Benefit.A bailment for mutual benefit can arise when a law

firm accepts and receives a client’s will or other propertyeven when no charge is made and the client neveragreed to pay anything. At issue is whether the lawyerbailee accepted the bailment for the purpose of derivinga benefit – such as a perceived advantage in beingselected to handle the later probate of that will.

Mutual benefit can be demonstrated by the existingrelationship between the client and the lawyer coupledwith the payment of fees for the preparation of the will.This is incident to the practice of law where the lawyermakes a profit from the client. The good will created byproviding safekeeping for the client’s will represents theminimum profit to the lawyer from this bailment.

F. Duties of Lawyer Are Based on Beneficiary ofBailment.The duties of the lawyer vary according to the

perceived benefit of the bailment. If it is for the solebenefit of the client, the duty is only slight care, while iffor the mutual benefit of lawyer and client, the dutyincreases to ordinary care. If it is regarded as being forthe sole benefit of the lawyer, then there is a duty ofgreat care, but absent an agreement to the contrary, thelawyer is not an insurer.

G. So What?If client’s will is lost, damaged, destroyed, or

misdelivered, the lawyer may be liable for damages.


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H. Proving the Client’s Case.If the will is lost, destroyed, or misdelivered by the

lawyer, the client’s prima facie case of negligenceconsists of proving the following:

1. Delivery of the will in good condition forsafekeeping,

2. Acceptance by the lawyer,3. Mutual understanding that the will would be

returned, and4. The will was not returned by the lawyer or it

was damaged or destroyed while in possessionof the lawyer.

Once these elements are proven there is arebuttable presumption of negligence and fault of thelawyer entitling client to recover damages. Sears,Roebuck And Company v. Wilson, 463 SW 2d 166,(Court of Appeals, Ft.Worth, 1998).

I. Defending Against Client’s Claim.The lawyer defends by showing compliance with the

appropriate standard of care. The lawyer must showthat the loss resulted from some other cause consistentwith due care on the lawyer’s part. Failure to rebut thepresumption of negligence establishes liability as a matterof law.

III. SOME OF THE PROBLEMSA. No Or Insufficient Bailment Agreement.

At best, many lawyers merely write a letter statingthat the client left the will with the lawyer and that thelawyer will deliver it when requested by the client. It isan easy situation when the client makes a personalrequest, but what if the request comes from a spouse?A child? A person holding a power of attorney? Aperson shown in the client’s obituary as the client’s onlysurviving relative? What proof of authority do yourequire?

“I do not want clients to think I’m attempting to tiethem into probate. I do not want to impose theresponsibilities of bailment upon myself, especially withregard to powers of attorney.” (Comment by boardcertified Texas lawyer).

B. Proper Safekeeping.Many lawyers keep the original will in the file that is

stored with all the other files. Some have separate

fireproof files and even special rooms with “fire doors.”Others use safe deposit boxes at their bank.

Query. How do we define “safekeeping” inlight of Tropical Storm Allison that flooded safedeposit boxes located in a Houston bank’sbasement and the Fort Worth tornado that blewpapers all the way to Dallas?

C. Expense of Safekeeping.Safe deposit box rental can run hundreds of dollars

a year and fireproof file cabinets can cost $1000 or more.Some lawyers try to recover a part of this cost byimposing a charge for safekeeping.

Query. Does a charge increase the lawyer’sduty to the client?

D. Continuing Representation.By retaining the client’s will, the lawyer may owe a

continuing duty to the client and the client would have abasis for contending that the engagement neverconcluded and therefore, the statute of limitations neverbegan to run.

E. Firm Splits Or Dissolves Or the DraftingLawyer Dies.If the drafting lawyer dies, the responsibility for

safekeeping the will passes to the survivors (partners,associates, staff, or family), some or all of whom may notwant or be willing to accept that responsibility or may noteven be lawyers.

Query. What about confidentiality issues whenthere is no lawyer involved?

If the testators were clients of the firm of Able,Best, and Capable and that firm dissolves with thelawyers going their own ways, there often are wills thatwere not prepared by any of the current lawyers. Thisis another problem.

F. Trying To Return The Wills.The lawyer or firm that decides to get out of the

safekeeping business will find it difficult. As oneACTEC lawyer wrote “The process of returningdocuments is an expensive one because it is timeintensive.”

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=463&edition=S.W.2d&page=166&id=19093_01


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If the lawyer or firm has encouraged safekeeping ofclients’ wills, then after a period of ten or more years,there will be wills for clients who no longer can belocated.

There are a number of good internet sites for tryingto locate people. These include www.accurint.com,www,switchboard.com, and www.worldpages.com.

G. Who Owns The Files?It seems clear that in Texas, the client owns all of

the file and that the lawyer is generally entitled to makeand retain copies.

Query. If the client can not be found, does thisobligate the lawyer to retain an original will foran indefinite time?

H. Depositing the Wills With County Clerk.Texas has a statutory procedure for depositing a will

with the county clerk of the testator’s residence.Probate Code, Section 71. The fee currently is $5.00 perwill. Many lawyers believe this provides the answerwhen the client cannot be located.

Although Section 71(a) permits the testator orsomeone acting for the testator to deposit the will, theclerk may require proof of the testator’s identity andresidence and Section 71(b) requires the will to be in asealed wrapper endorsed “Will of,” followed by thename, address, and signature of the testator and with thename and current address of each person who shall benotified of the deposit of the will after the death of thetestator. The full text of Section 71 appears atAttachment One. Documents required by the probateclerk of Harris County, Texas appear on AttachmentTwo.

Query. If testator cannot be located or did notsign the envelope, etc., can this provision bethe salvation?

Query. If even this procedure does not apply,what must the lawyer do with the original will?

IV. THE BIGGEST PROBLEM.A. A Continuing Relationship?

From a client’s point of view, the lawyer who holdsthe original will is that client’s lawyer – at least for awhile. The big question is what is “a while?”.

B. Trying To Start Limitations To Run.The lawyer may think that the lawyer-client

relationship terminated when the will was signed and thefee was collected. Perhaps the lawyer even sent a“termination” letter to the client. But, if the lawyer holdsthe client’s will, has there been a real termination thatwould be enough for the statute of limitations tocommence?

C. An Ongoing Duty?A lawyer who retains an original will may have an

affirmative duty to advise the client of changes in the lawthat could affect the client’s estate plan. A 1969California case held that the lawyer had a continuing dutyto a client whose will the lawyer had drafted where theattorney-client relationship continued. Heyer v. Flay. 499P 2d 161. This duty is not unlimited and the lawyer is nota guarantor for the client’s failure to act on the lawyer’sadvice.

The issue of a continuing duty to our estate planningclients is a troublesome gray area. It appears that theanswer turns on whether or not the client is a “present”client or a “former” client and in all likelihood, that will bedecided on whether the client has reasonableexpectations that the lawyer will advise the client offuture developments. Note here the importance ofhaving something in writing that delineates the lawyer’sresponsibility or lack thereof for such future advice andservices.

Query. If there is such a duty to advise ofchanges, can that duty be satisfied by sendinga general summary of changes in the law?

Query. Would there be a greater duty toinform the client of major tax law changessuch as the unlimited marital deduction, or theso-called repeal of the estate tax, or theincrease of the tax free amount of theexemption equivalent?

Query. Would there be a duty for the lawyerto examine all of the original wills being held todetermine if a new law actually affected theplan of each client? If so, how could thelawyer then know about the client’s particularcircumstances?


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D. The Effect of the Passage of Time.Signing the documents might end the active phase,

but it does not end the lawyer-client relationship since thelawyer remains bound by the duty of confidentiality.With many clients, no further legal services will beprovided. In that instance, the lawyer-client relationshipcould expire after the passage of an extended period oftime. This dormant or inactive phase is of anindeterminate duration and the retention of the originaldocuments suggests that the lawyer-client relationship iscontinuing.

E. Another Ethical Issue.While retaining original documents may be useful to

the client, there are those who believe that it isinappropriate, if not unethical, for the lawyer to do sobecause of the “advantage” it gives to the lawyercustodian when it is time to select a lawyer to handle theprobate.

F. Conflicts Of Interest.Still another issue is that as a result of a lawyer

holding the client’s original will, that lawyer or thatlawyer’s firm could be disqualified from representingcurrent or prospective clients whose interests may beadverse to the client. At least one law firm’s agreementto retain the will is conditioned that the firm would not beso disqualified. A further condition is that the firm is notcharged with informing the client or any other personnamed in the will of any change in tax, probate, trust, orother applicable laws.

G. Risk Management.Estate planning and proper drafting is a highly

complex area requiring far greater care due to constantlychanging tax laws, the nature and mobility of clients, andvarious ethical rules.

1. No longer can lawyers realistically view willwriting and estate planning as a loss leader.Present economics of law practic e no longerpermit a lawyer to wait twenty years or longerto attempt to recoup estate planning fees fromthe client’s estate.

2. Although computers are standard helpers in theproduction of documents, they are of equal useof management of files, capturing informationabout the clients and details concerning their

estate planning documents, and in providing areliable reminder system.

H. Completion Letter.Once an estate plan is implemented, the lawyer

should consider sending the client a “completion letter”.This letter could caution the client regarding the effect ofchanging title to assets or beneficiary designations orreminding the client to review the plan on a regular basis.Sample language follows:

“We have now completed the active phase ofour estate planning work for you and havedelivered the originals to you. It is yourresponsibility to safeguard these signedoriginals. A safe deposit box is a reasonableplace to store and safeguard your originaldocuments.

“Please do not write on the originals. Thiscould invalidate your will. We suggest that youcontact us if you want to make any changes toensure that those changes are made legally.

“Our fee for the preparation and supervision ofthe signing of the documents and the relatedadvice does not include a continuingresponsibility by us to ensure that thedocuments continue to comply with changes inthe law as they occur. Frequently thesechanges are of importance to only a few of ourclients and, since individual circumstances areso unique, it is not possible to contact each ofour clients to alert them to changes that couldthen affect them personally. Because of thisdifficulty, we are not in a position to undertakean obligation to so notify any of our clients.

“We do recommend that you review your willsand your basic estate plan at least every yearor so to ensure that they continue to meet yourneeds. Some events that would cause you toreview your plan at a different interval includedeaths of beneficiaries or executors; divorces;mental and physical disabilities of a beneficiaryor executor; disaffection with anyone named inyour will; a financial disaster affecting the sizeof your estate or the size of proposed gifts thatyou would otherwise make; or on the bright


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side, a windfall such as a large inheritance orwinning the lottery. Finally, should you feeluneasy about any aspect of your plan, youshould come back for a review.”

V. E X C E R P T S F R O M T H E T E X A SD I S C I P L I N A R Y R U L E S O FPROFESSIONAL CONDUCT.

A. ConfidentialityA lawyer should keep in confidence information

relating to representation of a client except so far asdisclosure is required or permitted by the TexasDisciplinary Rules of Professional Conduct or other law.Section 3, Preamble to Texas Rules of ProfessionalConduct.

1. “Confidential information” includes both“privileged information” and “unprivilegedclient information”. “Privileged information”refers to the information of a client protectedby the lawyer-client or attorney-client privilege.“Unprivileged client information” means allinformation relating to a client or furnished bythe client, other than privileged information,acquired by the lawyer during the course of orby reason of the representation of the client.DR 1.05 (a).

2. A lawyer shall not knowingly revealconfidential information of a client or formerclient to anyone other than the client, theclient’s representatives, or the members,associates, or employees of the lawyer’s lawfirm. DR 1.05 (b) (ii).

3. A lawyer may reveal confidential informationwhen the lawyer has been expressly authorizedto do so in order to carry out therepresentation; when the client consents afterconsultation; or to the client, the client’srepresentatives, or the members, associates,and employees of the lawyer’s firm, exceptwhen otherwise instructed by the client, or tothe extent necessary to enforce a claim. DR1.05 (c) (1), (2), (3), (5)

B. Safekeeping Property.A lawyer shall hold funds and other property

belonging in whole or in part to clients or third persons

that are in a lawyer’s possession in connection with arepresentation separate from the lawyer’s own property.Such funds shall be kept in a separate account,designated as a “trust” or “escrow” account, maintainedin the state where the lawyer’s office is situated, orelsewhere with the consent of the client or third person.Other client property shall be identified as such andappropriately safeguarded. Complete records of suchaccount funds and other property shall be kept by thelawyer and shall be preserved for a period of five yearsafter termination of the representation. DR 1.14 (a).

C. Ethics Opinion.An attorney is an agent for the client and an agent

may not disclose or use information relating to theprincipal where such information is obtained during thecourse of the agent’s employment. The protectionsafforded under agency law exceed those which arisesolely from an attorney-client privilege.

Confidential information includes both privilegedinformation as well as unprivileged client information andboth types are confidential in nature. DR 1.05 (a) statesin pertinent part that a lawyer shall not knowingly revealconfidential information of a client or a former client toanyone else, other than the client, the client’srepresentatives, or the members, associates, oremployees of the lawyer’s law firm.

VI. HANDLING REQUESTS FOR DELIVERYOF ORIGINAL WILL AND OTHERDOCUMENTS

A. Request By Testator.This is the easy one. Deliver in the manner

requested. If personal delivery, get a written receipt. Ifrequest was by mail, the testator’s letter should besufficient in most cases.

B. Request By Someone Else.Here the decision becomes more complicated unless

your safekeeping agreement provides for delivery to athird party. Absent the “appropriate language” in youragreement, there is no totally safe procedure other thanto refuse to answer any inquiry. That refusal couldensure that you are the former lawyer for the family.

If you do choose to respond, there is no right answerbut your response could lead to a grievance, amalpractice claim, or a suit for damages.


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For purposes of the following questions, assume thatyou prepared wills for both husband and wife and bothare alive.

Query. If one spouse requests delivery of willsfor both husband and wife, should you (a)comply with the request, (b) deliver only thewill of the requesting spouse pending “proper”authorization from the other spouse, or (c) dosomething else?

Query. If an adult child requests delivery ofthe will of either or both parents, should you (a)comply with the request if you know the child,(b) comply with the request even if you do notknow the child, (c) require “proper”authorization from the parents(s), or (d) dosomething else?

Query. If the request comes from someoneacting as an agent under a statutory durablepower of attorney, should you (a) comply withthe request only if you know the agent, (b)comply with the request even if you do notknow the agent, (c) require verification fromthe testator(s), (d) refuse to deliver the will(s),or (e) do something else?

Consider the provisions of Probate Code, Sections 491and 493 as set forth in Attachment Four. Does thatchange your answer?

Query. If you know the testator is disabled, doyou follow a different procedure?

Query. Do you follow a different procedure ifthe request is for a medical power of attorneyor a directive to physicians?

C. Probate Code, Sections 36D and 36E.1. Section 36D deals with examination of a document

without court order and states that a person whopossesses or controls a document delivered by adecedent for safekeeping may permit the documentto be examined by the decedent’s spouse, parent, 18year old descendant, or a person named as executorin a will.

2. Section 36E allows the person who permitted theexamination of the document purporting to be a willto deliver that document either (a) to the clerk of acourt having probate jurisdiction that is located in thecounty in which the decedent resided or (b) to theperson named in the document as an executor ofdecedent’s estate. The indicated executor mustgive its custodian receipt for the will.

Query. Does this statutory permission providea safe harbor for the lawyer custodian or doethical constraints control?

VII. HANDLING THIRD PARTY REQUESTSFOR INFORMATION

If you receive a request as to whether you prepareda will for a particular client, you are faced with adilemma. Probably the only “safe” answer is to refuseto answer without authorization from the client, butconsider the following:

Query. If the inquiring person is a spouse oran adult child, will you (a) state whether or notyou prepared a will, (b) refuse to answer evenif you have represented that family member,(c) refuse to answer if you know the identity ofbut have not represented that family member,(d) refuse to answer regardless of the identityand relationship of the family member?

Query. If the inquiring person is anotherlawyer, will you (a) state whether or not youprepared the will, or (b) refuse to answer?

Query. If the inquiring person is neither afamily member or another lawyer, will you (a)state whether or note you prepare the will, or(b) refuse to answer?

Query. If you learn or already know of thetestator’s death, will your response bedifferent?

VIII. WHAT TO DO WITH THE ORIGINALW I L L W H E N Y O U L E A R N O FTESTATOR’S DEATH

A. The Rubber Hits The Road.Presumably one reason for holding the original will

was the expectation (anticipation?) (hope?) that you


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would be hired to probate the will and “handle theestate.”

B. The Testator Has Died. Now What?When you learn about Testator’s death, which of

the following do you do?

1. Wait to be contacted and hope to be hired? Ifso, how long do you wait?

2. Write or call a member of the family to advisethat you are holding the will for safekeeping?If so, will you deliver the original will to thatperson?

3. Write or call the first named executor to advisethat you are holding the will for safekeeping?If so, will you deliver the original will to thatperson?

4. Deliver the original will to the county clerk ascontemplated by Probate Code Section 71?

IX. AN INFORMAL QUESTIONNAIRE.An unscientific questionnaire was sent to

approximately 520 lawyers who are board certified inestate planning and probate. A copy containing asummary of the responses appears as Attachment Four.Selections from their comments appear as AttachmentFive.

X. CONCLUSION.I believe that Winston Churchill had the answer. In

his famous commencement speech dealing withperseverance, Churchill is quoted as saying “Never giveup. Never give up. Never. Never. Never . . . .” Thatis advice worth heeding when it comes to retaining aclient’s original will. Never retain. Never retain. Never.Never. Never . . . .


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ATTACHMENT ONE

Text of Probate Code, Section 71

§71. Deposit of Will With Court During Testator’s Lifetime.(a) Deposit of Will. A will may be deposited by the person making it, or by another person for him with the

county clerk of the county of the testator’s residence. Before accepting any will for deposit, the clerk may require suchproof as shall be satisfactory to him concerning the testator’s identity and residence. The clerk, on being paid a fee ofThree Dollars therefor, shall receive and keep the will, and shall give a certificate of deposit for it. All wills so filed shallbe numbered by the clerk in consecutive order, and all certificates of deposit shall bear like numbers respectively.

(b) How Will Shall Be Enclose d. Every will intended to be deposited with a county clerk shall be enclosed ina sealed wrapper, which shall have endorsed thereon “Will of,” followed by the name, address and signature of thetestator. The wrapper must also be indorsed with the name and current address of each person who shall be notified ofthe deposit of the will after the death of the testator.

(c) Index to Be Kept of All Wills Deposited. Each county clerk shall keep an index of all wills so depositedwith him.

(d) To Whom Will Shall Be Delivered. During the lifetime of the testator, a will so deposited shall be deliveredonly to the testator, or to another person authorized by him by a sworn written order. Upon delivery of the will to thetestator or to a person so authorized by him, the testator or to a person so authorized by him, the certificate of depos itissued for the will shall be surrendered by the person to whom delivery of the will is made; provided, however, that in lieuof the surrender of such certificate, the clerk may, in his discretion, accept and file an affidavit by the testator to theeffect that the certificate of deposit has been lost, stolen, or destroyed.

(e) Proceedings Upon Death of Testator. If there shall be submitted to the clerk an affidavit to the effect thatthe testator of any will deposited with the clerk has died, or if the clerk shall receive any other notice or proof of the deathof such testator which shall suffice to convince him that the testator is deceased, the clerk shall notify by registered mailwith return receipt requested the person or persons named on the indorsement of the wrapper of the will that the will ison deposit in his office, and, upon request, he shall deliver the will to such person or persons, taking a receipt therefor.If the notice by registered mail is returned undelivered, or if a clerk has accepted a will which does not specify on thewrapper the person or persons to whom it shall be delivered, the clerk shall open the wrapper and inspect the will. If anexecutor is named in the will, he shall be notified by registered mail, with return receipt requested, that the will is ondeposit, and, upon request, the clerk shall deliver the will to the person so named as executor. If no executor is namedin the will, or if the person so named is deceased, or fails to take the will within thirty days after the clerk’s notice to himis mailed, or if notice to the person so named is returned undelivered, the clerk shall give notice by registered mail, withreturn receipt requested, to the devisees and legatees named in the will that the will is on deposit, and, upon request, theclerk shall deliver the will to any or all of such devisees and legatees.

(f) Depositing Has No Legal Significance . These provisions for the depositing of a will during the lifetime ofa testator are solely for the purpose of providing a safe and convenient repository for such a will, and no will which hasbeen so deposited shall be treated for purposes of probate any differently than any will which has not been so deposited.In particular, and without limiting the generality of the foregoing, a will which is not deposited shall be admitted to probateupon proof that it is the last will and testament of the testator, notwithstanding the fact that the same testator has ondeposit with the court a prior will which has been deposited in accordance with the provisions of this Code.

(g) Depositing Does Not Constitute Notice. The fact that a will has been deposited as provided herein shallnot constitute notice of any character, constructive or otherwise, to any person as to the existence of such will or as tothe contents thereof.


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ATTACHMENT THREEComments From ACTEC Fellows

1. The Wisconsin Supreme Court’s disapproval of the practice of lawyers’ keeping possession of their clients’ originalWills, unless pursuant to a client’s specific unsolicited request (State v. Gulbankian, 54 Wis. 2d 605, 196 N.W. 2d 733)is unmistakable:

“An attorney, merely because he drafts a will, has no preferential claim to probate it. (Citation omitted.) Nor do weapprove of attorneys’ “safekeeping” wills. In the old days this may have been explained on the ground many people didnot have a safe place to keep their valuable papers, but there is little justification today because most people do havesafekeeping boxes, and if not sec. 853.09, Stats., provides for the deposit of a will with the register in probate forsafekeeping during the lifetime of the testator. The correct practice is that the original will should be delivered to thetestator, and should only be kept by the attorney upon specific unsolicited request of the client.”2. “We usually ask our client what they want done with their wills. We have ample space in the bank vault in ourbuilding, keep meticulous records, store them obsessively in alphabetical order, take out superseded wills for destructionby the client, and 95% of our clients feel more secure with our retaining the wills and giving them a conformed copy.”3. “We are a California law firm so some of our experiences may not be applicable to other states and their customsand practices.

“We have been working on sending original docs, mainly wills and trusts, to the clients for the past two years. Itis a slow and tedious process and a much much larger project than we ever imagined. Our firm is 35 years old butthrough several small mergers has accumulated documents going back into the 50s.

“We made the decision because we didn’t like the responsibility of safe keeping these documents. It was (and maystill be) the practice in California to keep possession of the originals for the clients and provide them with copies. Theold expectation that the client (or their children) would have to come back to us, in order to probate their estate oradminister their trusts seems no longer an appropriate (if it ever was) reason to keep possession of the documents. Alsohaving possession of clients’ documents can be used as a basis for some one to claim that they are still “active” clientsto whom we owe duties.

“One of the problems we have had is finding addresses. By skillful use of the internet we have been (able) to trackdown some and also determine if they are deceased. However, finding a person with the same name who is nowdeceased isn’t really proof that that is the person whose documents we have. We first send letters to clients asking themto tell us where and how we should send the documents to them. This letter asks them to fill out a simple instruction sheetwith their address and whether to mail them or that they would pick them up. They are to send back the instruction sheetso we have some safety in sending them to that address.

“The longer we have been at it the more convinced I become that we should not be holding the documents.” 4. “We scan all original wills, codicils, trusts and amendments, immediately after they are signed so that we will havean electronic copy showing all signatures. This makes later review easier (we don’t have to retrieve files as often fromstorage), and provides an additional measure of security from loss or fire.”5. “Client moves – no one knows that lawyer is holding will and client dies intestate.”6. “No responsibility for safekeeping therefore no fireproof file and no responsibility for my heirs and executors.”7. “I recognize the potential for mischief if the real purpose for retaining the will is to improperly attempt to tie the clientto you.”8. “My former firm preferred to keep them and as a result had wills dating back to 1914 still in their vault.”9. “Many lawyers whom I respect provide estate planning document safekeeping services for their clients and haveno ulterior motives in so doing. In general, however, I prefer not to keep clients’ documents. I also worry about my beingthe one who loses (or has supervisory authority over the one who loses) a document. Document safekeeping is simplya responsibility that, absent special circumstances, I choose not to assume.”

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=wi_caselaw&volume=54&edition=Wis.2d&page=605&id=19093_01

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=WI_caselaw&volume=196&edition=N.W.2d&page=733&id=19093_01


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ATTACHMENT FOUR

Excerpts From Durable Power Of Attorney Act

Excerpt from Probate Code, § 491. Construction of Powers Generally

The principal, by executing a statutory durable power of attorney that confers authority with respect to anyclass of transactions, empowers the attorney in fact or agent for that class of transactions to:

(1) demand, receive, and obtain by litigation, action, or otherwise any money or other thing of value to whichthe principal is, may become, or may claim to be entitled;

(3) contract in any manner with any person, on terms agreeable to the attorney in fact or agent, to accomplish apurpose of a transaction and perform, rescind, reform, release, or modify the contract or another contract made byor on behalf of the principal;

(7) engage, compensate, and discharge an attorney, accountant, expert witness, or other assistant;(11) in general, do any other lawful act that the principal may do with respect to a transaction

Excerpt from Probate Code, § 493. Construction of Power Relating to Tangible Personal Property Transactions

In a statutory durable power of attorney, the language conferring general authority with respect to tangiblepersonal property transactions empowers the attorney in fact or agent to:

(1) accept as a gift or as security for a loan, reject, demand, buy, receive, or otherwise acquire ownership orpossession of tangible personal property or an interest in tangible personal property;

(4) do an act of management or conservation with respect to tangible personal property or an interest, intangible personal property on behalf of the principal, including:

(B) obtaining or regaining possession or protecting the property or interest by litigation, action, orotherwise;


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ATTACHMENT FIVE

QUESTIONNAIRE FOR 2003 ADVANCED ESTATEPLANNING AND PROBATE COURSE

This is an unscientific poll of selected Texas estate planning lawyers who belong to ACTEC and/or are board certified.Replies will be kept confidential and there is no need to identify yourself. The results of this poll will be tabulated andmade a part of a presentation at the State Bar 2003 Advanced Estate Planning and Probate Course. The use of the terms“firm” and “you” are interchangeable unless context clearly indicates otherwise.

I. BACKGROUND

A. Year admitted to practice?

B. Number of lawyers in your firm who prepare wills?

II. IF YOU RECEIVE A THIRD PARTY INQUIRY AS TO WHETHER YOU PREPARED A WILL FOR APARTICULAR CLIENT, WHAT DO YOU DO? (Please indicate all that apply.)

A. If you are not acquainted with inquiring person: 11 State whether you did or did not? 71 Refuse to answer without consent of client? 26 Other

B. If the inquiring person is a spouse or an adult child: 38 State whether you did or did not? 43 Refuse to answer without consent of client? 29 Other

C. If the inquiring person is another attorney: 27 State whether you did or did not? 54 Refuse to answer without consent of client? 29 Other

D. If you are advised of the client’s death what is your response?

III. DOES YOUR FIRM HOLD CLIENTS’ ORIGINAL WILLS FOR SAFEKEEPING? If not, whynot? YES 50 NO 52


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IV. IF YOUR FIRM DOES HOLD ORIGINAL WILLS FOR SAFEKEEPING:

A. Is your normal practice to offer to hold wills for most of your clients? YES 31 NO 72

B. Do you charge for holding these wills? YES 1 . If so, what is the charge? $10/YEAR

C. About how many do you hold?

D. What is given to your clients to evidence the fact that you have their wills? 9 A formal receipt like a certificate? 48 A letter to the client? 20 Other? (please specify)

E. Do you maintain a current listing of those wills that shows the physical location of each? YES 61 NO 12

F. Where do you keep those wills? 6 Regular file in office? 44 “Fireproof” file in office? 23 Safe deposit box at financial institution? 3 Other? (Please specify)

G. If you use a safety deposit box, who is authorized to remove documents from that box?

H. Do you or does someone in your firm currently know how to contact each person whose will you are holding? YES 44 NO 27

I. Can each of these testators be located from current records you regularly maintain? YES 48 NO 23

J. How often do you contact those clients after their wills have been entrusted to you for safekeeping?

K. What efforts do you make to locate a testator when mail is returned?

L. Have you either lost, misplaced, or erroneously destroyed an original will? If so, what did you do to correctthe situation? YES 4 NO 70

V. HANDLING WILLS WHILE CLIENT IS ALIVE

A. If client requests delivery of the original will, do you require a written authorization or receipt? YES 55 NO 18


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B. If you provided your client with a formal receipt or certificate and client cannot or does not exchange it forthe will, what do you do?

C. If one spouse requests the delivery of wills for both husband and wife, what do you do? 30 Comply with the request? 12 Deliver only the will of the requesting spouse? 30 Require written authorization from the other spouse? 19 Other? (please specify)

D. If an adult child requests the delivery of the will of either or both of the parents, what do you do? 5 Comply with the request if you know the child? 0 Comply with the request even if you don’t know the child? 55 Require written authorization from the parent(s)? 20 Other? (please specify)

E. If someone holding the client’s statutory durable power of attorney requests the delivery of that person’s will,what do you do? 14 Comply with the request? 44 Require client to verify the authorization? 24 Other (please specify)

F. If you learn that the testator is disabled, do you follow a different procedure? If yes, please specify YES 32 NO 22

VI. WHEN YOU LEARN OF TESTATOR’S DEATH, WHAT DO YOU DO WITH THAT PERSON’S WILL?(Please indicate all that apply):

27 Nothing except wait to be contacted and hope to be engaged to probate the will.

37 Write or call a member of the family to advise that you are holding the will for safekeeping.

27 Deliver the original will to the first named executor.

2 Deliver the original will directly to the testator’s spouse if he or she is also a client whether or not that spouseis the first named executor.

1 Deliver the original will directly to an adult child of the testator, if that child is a client of the firm, whether ornot that child is the first named executor.

18 Immediately deliver the will to the county clerk.


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20 Other (please specify)

THANK YOU FOR YOUR HELP. PLEASE SEND YOUR COMPLETED FORM TO:

James E. BrillP. O. Box 22870

Houston, TX 77227


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ATTACHMENT SIX

Selected Comments From Board Certified Lawyers

1. “We do not hold client wills and attempted many years ago to deliver them to clients. We still have a few on handbecause we could not locate the client, and I am concerned about our liability on them.”2. “My ‘two cents’ worth based on my ten years in private practice is that I am firmly in the ‘do not hold Originals’camp. Holding originals is in my view a huge burden and liability with little or no benefit to the practitioner.”3. “After you accumulate hundreds of clients’ files and then decide it was a really bad idea to keep the originals, yoursecretary will then be faced with the project of returning the documents. Many clients will have moved and switchedjobs. Their phone numbers will have changed too. And then you must decide how to send them their documents. Thepreferred method is by certified mail, return receipt requested. That can cost $7 - $10 for ever client. If you havehundreds of files to return, the secretarial down time and postage costs can be enormous.”4. “We used to do that and still have some wills prepared before we adopted the current policy. We returned all willsin our possession to the client but were unable to locate some clients. Clients entrusting a will to the attorney normallydo not keep in touch about new addresses and move away, forgetting they have left a will with their attorney. Othersmake new wills and do not tell the first attorney. It just is too much hassle to keep up with any original client documents.”5. “Too dangerous and I have heard several stories of firms that have ‘lost’ the Will stored in their safe. I also knowthat this requires the family to contact the original firm to get the original Will. I believe that this creates a problem forthe new lawyer contacted by the family after the death and is an unfortunate impediment for the new lawyer and thefamily.”6. “I do not feel that it is appropriate to attempt to gain employment in the future from an executor who does not knowme and who has the right to choose whomever he or she wishes to choose as his or her attorney; this seems unethicalto me. I do not have a place to keep the Wills and I cannot and will not assume responsibility for another person’s Will.”7. “Takes up too much space and what if one is misplaced, or the client thinks we had it but we have no record ofit. The mere fact that we may have had it, may impose some exposure on us that I do not feel comfortable with.”8. “I do not want the responsibility of keeping track of it and the client. If I have a will, I think I have a duty to informthe client of all changes in the law to be sure his or her estate plan is up to date.”9. “No, I do not have fireproof facilities, and have no continuity plan.”10. “We used to do this but stopped in about the mid to late 1970's. We have a safe in our office that has signedoriginal wills dating back to the 1940's. We don’t know who these people are and know nothing about them now. Forthis reason we don’t keep any signed original documents of any type or kind of any clients. But especially we don’t keepwills, power of attorneys etc. We do keep a copy of the signed originals but not the actual signed original. Anotherreason we don’t is we don’t want an implied obligation to keep the client advised of changes in the law etc. We thinkkeeping originals makes a stronger argument that we have a duty to do that. We may never see that client again. Theymay move or whatever.”11. “I don’t have the facilities to protect a client’s original documents. If I haven’t earned the client’s business/trustin the planning phase, I don’t think I deserve the probate work.”12. “We don’t want either the responsibility of trying to determine that a person has moved, or has done a later Will,or the guilt of fearing someone’s Will doesn’t get found. Also, what if there were a fire before we got the Will someplacesafe. It saves on safe deposit fees. MOST IMPORTANT, we don’t give the impression of holding the Will to force thefamily to think it should choose us to probate. Also, we can ‘sunset’ our practice much more easily, if we should everchoose to, or someone else needed to.”13. “I might be dead and I do not want my estate to have to deal with handling original wills.”14. “All originals are kept in a special ‘will room’ that contains fireproof locked cabinets. The room itself is alsospecially locked, with access restricted to only the probate lawyers and their staff. Nothing is kept in that room butoriginal estate planning documents.”15. “I did so more than 20 years ago and haven’t been able to locate the people to return those Wills. I don’t want theresponsibility, especially since I will eventual(ly) cease practicing law.”


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16. “I want my clients to feel free to tear up their will anytime they get the urge and want them to choose the attorneyto handle the probate. I also don’t want to have to be responsible for the safekeeping of their original docs.”17. “I quit doing it several years ago. I am concerned that I now hold old wills for clients with whom I have no contact.I am also concerned about availability when I retire.”18. “Society is too mobile and it is impossible to keep up with clients or for them to keep up with the firm. Had badexperience with situation where a will was lost due to the attorney dying prior to the client and despite many hours ofchecking never being able to find the will.”19. “We think it’s bad for the client and the lawyer.”20. “I don’t feel it is my obligation or privilege to keep original documents for a client. People move so frequently, andso do attorneys, causing one not to be able to find the other. Additionally, I don’t feel it’s ethical to have the family tiedto our firm. . . if they want to use another lawyer, then they don’t have to contact us at all.”21. “I keep a copy of the client’s Will in my file and write on the bottom of the first page where the client tells me heor she will keep the Will. I do not keep original Wills prepared for clients because there is not an ‘ongoing’ relationshipbetween me and the client after I have prepared the Will. Further more, it is my belief, among others, that by keepingthe original of an important legal document such as a Will (this includes keeping abstracts or any other such documents),a lawyer may expose himself or herself to potential future liability.”22. “A former firm in which I was a partner encouraged clients to leave their wills with the firm for safekeeping. Afterseveral years, it became apparent that the volume was difficult to manage using bank safe deposit boxes and we did notwant to build a vault in our building. Attempts were made to contact all clients and ask them to either pick up their willor authorize our mailing it. The nightmare began when mail was returned ‘addressee unknown - no forwarding order’.The remnant of that firm still has many wills which may have been revoked by subsequent ones. They ponder ‘How longshould they keep them?’ The answer may be until the testator would be 120 or so, but often the file does not give theclient’s birthdate. Therefore, based on that experience, I have never kept a client’s will.”23. “Generally, clients execute wills in duplicate, client keeps one and firm keeps one.”24. “Way too much responsibility, i.e., liability. I think the fact that you asked all the rest of the questions pretty wellexplains the other reasons I don’t keep wills.”