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ISBA 2015

What should a lawyer do with original client wills left behind when a trusts-and-estates partner leaves the firm?

Short answer: The remaining lawyers must safeguard the original wills as client property, and if after a diligent search they cannot locate the testators, they should file the wills with the Illinois Secretary of State's Deposit of Wills program.

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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

In a three-member firm, the partner who handled trusts and estates is leaving the state and going on retired status with no intention to serve Illinois clients, leaving several original wills in the firm's possession. The remaining lawyers do not practice trusts and estates. The committee was asked about a lawyer's ethical obligations when storing original wills.

The opinion frames the duty under Rule 1.15(a), which requires tangible client property held by a lawyer to be identified and safeguarded; the will remains the client's property even while stored. Rule 1.15(d) requires prompt delivery of property the client is entitled to receive and an accounting on request. The committee notes the lawyers should be aware of any continuing attorney-client relationship: if the testator remains a current client, Rules 1.7 and 1.8 may apply, and if a former client, Rule 1.9.

The opinion points to the lawyer's statutory duty under 755 ILCS 5/601 to file a will with the clerk of the proper court immediately on the testator's death. Where the lawyers do not wish to keep the originals and, even after a diligent search, cannot locate the testator, the committee directs them to the Illinois Secretary of State's Deposit of Wills program, whose requirements (diligent search, deposit, and receipt) are set out in 53 Ill. Admin. Code 400.

The committee adds that attorneys should have a succession plan, citing Comment 5 to Rule 1.3 (a sole practitioner's duty of diligence may require a plan designating another lawyer to review files and notify clients), and notes that wills stored in a safe deposit box are governed by 755 ILCS 15/1, which requires the lessor bank to deliver any will found there to the circuit court on proof of the lessee's death. The opinion states it is not comprehensive and directs lawyers to consult the cited statutes.

In practice

Under this opinion, the lawyers remaining after a trusts-and-estates partner's departure must safeguard the original wills as client property under Rule 1.15 and remain alert to any continuing or former client relationship. The opinion holds that if the lawyers do not wish to retain the originals and cannot locate the testators after a diligent search, they should deposit the wills with the Illinois Secretary of State's Deposit of Wills program under 53 Ill. Admin. Code 400. The opinion notes the statutory duty under 755 ILCS 5/601 to file a will on the testator's death and recommends a succession plan per Rule 1.3 Comment 5.

Common questions

Q: Who owns an original will the lawyer is storing?

A: The client. The opinion states the will remains the client's property, and Rule 1.15 requires the lawyer to identify and safeguard it and to deliver it on the client's request.

Q: What do the remaining lawyers do with wills they cannot return?

A: Per the opinion, after a diligent search that fails to locate the testator, they should file the wills with the Illinois Secretary of State's Deposit of Wills program under 53 Ill. Admin. Code 400.

Q: When must a lawyer file a client's will with the court?

A: The opinion cites 755 ILCS 5/601, which requires any person holding a testator's will to file it with the clerk of the proper county immediately upon the testator's death.

Q: What about wills kept in a safe deposit box?

A: The opinion notes 755 ILCS 15/1 requires the lessor bank, on proof of the lessee's death, to remove any will and deliver it to the circuit court.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.15 (safekeeping property; Model Rule 1.15) and Rule 1.3 (diligence and succession planning; Model Rule 1.3), read with the Illinois Probate Act duty to file a will (755 ILCS 5/601), the safe-deposit-box statute (755 ILCS 15/1), and the Secretary of State's Deposit of Wills program (53 Ill. Admin. Code 400).

Citations and references

Rules of Professional Conduct:

  • Illinois RPC 1.15 (Model Rule 1.15): safekeeping client property
  • Illinois RPC 1.3 (Model Rule 1.3): diligence; succession planning (Comment 5)
  • Illinois RPC 1.7, 1.8, 1.9: conflicts where the testator remains a current or former client

Statutes and rules:

  • 755 ILCS 5/601: duty to file a will on the testator's death
  • 755 ILCS 15/1: wills in safe deposit boxes
  • 53 Ill. Admin. Code 400: Secretary of State Deposit of Wills program

See also

Source

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