When a lawyer buys a retiring attorney's practice and inherits original wills, what must the lawyer do, and can the wills be filed with the surrogate's court?
NY State Bar Ethics Opinion 1035: Original wills when taking over a retiring lawyer's practice
Short answer: A lawyer who comes into possession of original wills by buying a retiring lawyer's practice must take reasonable steps to locate and notify each testator or others with an interest in the will, may review or disclose confidential information from a will only as reasonably necessary for its proper disposition, and may file an original will with the local surrogate's court.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer bought the practice of a retiring solo practitioner and, by agreement, assumed the duty to notify the clients whose wills the retiring lawyer had drafted. She received original wills dating back to 1970, some of which the retiring lawyer had himself inherited from other lawyers' practices. None of the testators were her clients, she had no related files for wills from 1970 to 2000, and many wills gave only sparse identifying detail. She researched the testators' whereabouts through Internet searches, obituaries, estate proceedings, and property records, wrote to those she could locate, and confirmed that some had died, some had moved out of state, and some could not be found; in some cases estates had already been administered or probated under a newer will (¶¶ 1-6). She asked what she must do across these scenarios and whether she could file the wills with the surrogate's court (¶ 7, ¶ 8).
The committee grounded the answer in Rule 1.15(c)(1), which requires a lawyer to promptly notify a client or third person of receipt of property in which that person has an interest, and to preserve and account for it. Because the wills are property of third persons obtained incident to the lawyer's practice, Rule 1.15(c) applies, giving her a general obligation to notify the testators even apart from her agreement with the retiring lawyer (¶¶ 9-10, ¶ 14, citing N.Y. State 1002). On confidentiality, the committee followed N.Y. State 341 and N.Y. State 1002: the lawyer holds the wills as a custodian rather than in an attorney-client relationship, should respect confidential information, but may access or disclose it as reasonably necessary to dispose of the wills, including to notify testators, executors, or beneficiaries (¶¶ 11-13).
The committee identified two limits. First, if the retiring lawyer had already notified the clients, the inquirer need not give duplicative notice (¶ 15). Second, the rule does not require the impossible: where a third person's location is unknown, the lawyer must take reasonable steps to locate and notify, and the inquirer's extensive efforts satisfied that duty (¶ 16, citing Massachusetts Opinion 76-7). The same analysis applies across all the scenarios: she must notify those with an interest where it is reasonably possible to identify and locate them, even where an estate has been closed, since such notice may not be an empty exercise (¶ 17). Finally, the committee saw no ethical bar to filing an original will with the surrogate's court under SCPA § 2507, noting the statute protects the confidentiality of filed wills, though in some circumstances it might be prudent for the lawyer to remain custodian instead (¶ 18, ¶ 19).
In practice
Under the New York rules as they stood at the time of the opinion, the opinion holds that the lawyer has both the authority and the responsibility to act. Per the opinion, Rule 1.15(c)(1) requires reasonable steps to locate and notify each testator or other person with an interest in a will, and the lawyer may use confidential information from the will only as reasonably necessary to accomplish that disposition. The committee treats the duty as excused where the person already has the information (for example, where the retiring lawyer gave notice) and where the person genuinely cannot be located after reasonable efforts. The opinion applies the same notification analysis whether or not an estate has been administered or probated, and it permits filing an original will with the local surrogate's court under SCPA § 2507, leaving the choice between filing and remaining custodian to the facts of each case.
Common questions
Q: Does a lawyer who inherits a will by buying a practice have to notify the testator?
A: Generally yes. The wills are third-party property obtained incident to the lawyer's practice, so Rule 1.15(c)(1) requires the lawyer to take reasonable steps to locate and notify those with an interest (¶ 14, ¶ 19).
Q: Can the lawyer read a will to find the testator or beneficiaries?
A: Yes, to the extent reasonably necessary. The committee held the lawyer should respect confidentiality but may access or disclose information from the will as reasonably necessary for its proper disposition (¶ 13).
Q: What if a testator cannot be found?
A: The lawyer must make reasonable efforts to locate and notify, but the rule does not require notifying someone who cannot be found; the inquirer's extensive searches satisfied that duty (¶ 16).
Q: Can the lawyer file the original will with the surrogate's court?
A: Yes. The committee saw no ethical bar to filing under SCPA § 2507, noting the statute keeps filed wills confidential, though remaining custodian may sometimes be prudent (¶ 18).
Background and rules framework
The opinion interprets New York Rule 1.15(c) (notice, safekeeping, and delivery of property in which a client or third person has an interest) and Rule 1.6 (confidentiality), corresponding to ABA Model Rules 1.15 and 1.6, alongside SCPA §§ 2402 and 2507 on filing wills with the surrogate's court. The analysis turns on the lawyer's status as a custodian of third-party property and on what disclosure is reasonably necessary for proper disposition.
Citations and references
Rules of Professional Conduct:
- MR 1.15 / NY RPC 1.15(c) (notice and safekeeping of third-party property)
- MR 1.6 / NY RPC 1.6 (confidentiality)
Statutes:
- SCPA § 2507 (filing and confidentiality of deposited wills); SCPA § 2402(9)(v) (filing fee)
Other opinions cited:
- N.Y. State 1002 (2014): a lawyer holding others' wills may disclose information as reasonably necessary to dispose of them
- N.Y. State 341 (1974): a successor lawyer holds transferred wills as custodian, not in an attorney-client relationship
- N.Y. State 724 (1999): a drafting lawyer's duty to ensure the executor or beneficiaries learn of a will
- Massachusetts Opinion 76-7: a successor lawyer must make a reasonable effort to locate testators
See also
- NY State Bar Op. 1182: Disposition of unclaimed wills of missing testators
- NY State Bar Op. 1172: Retired lawyer referral fee on transferred wills
- NY State Bar Op. 1133: Custodian of client files contacting prior clients
- NY State Bar Op. 1078: Confirming "no will" to a former client's son
Source
- Landing page: https://nysba.org/ethics-opinion-1035/