Ezel / Ethics Opinions / NYSBA
NYSBA 2020-01-23

Can a New York lawyer holding hundreds of old original wills dispose of them when the testators cannot be located after a diligent search?

Short answer: No. The opinion concludes that a will is property under Rule 1.15(c), so a lawyer custodian who cannot locate the testator must safeguard the wills indefinitely unless the law provides a way to file or otherwise dispose of them.
Currency note: this opinion is from 2020
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 Not binding precedent.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 at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1182: Disposition of Wills When the Testators Cannot Be Found

Short answer: The opinion concludes that a lawyer may not dispose of original wills whose testators' locations or circumstances are unknown; a will is property under Rule 1.15(c), so the lawyer must safeguard the wills indefinitely unless the law affords an avenue to file or otherwise dispose of them.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York'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 holds over five hundred original wills whose testators cannot be located despite due diligence. The lawyer or the lawyer's firm prepared some, but most came in through successive acquisitions of other lawyers' practices, with some wills more than seventy years old. After searching office records, the internet, and the Surrogate's Court for the testators, executors, and beneficiaries, the lawyer found nothing and wanted to dispose of the wills lacking identifying information.

The opinion concludes the lawyer may not simply discard them. Rule 1.15(c) requires a lawyer to notify a client or third person of property received in which they have an interest, to preserve the property, keep records, and deliver it on request. A will is property. Building on N.Y. State 341 (1974), 1035 (2014), and 1133 (2017), the committee notes that a lawyer who comes into possession of a will (including by acquiring a retiring lawyer's practice) holds it as custodian and must take reasonable steps to locate and notify those with an interest. The Rules do not expressly say what happens when, despite reasonable efforts, the testator cannot be found.

Following the New York City Bar (Op. 1999-05) and a Massachusetts opinion (76-7), the committee holds that the obligation to keep such wills in safekeeping continues indefinitely or as the law allows. Because the committee's jurisdiction stops at the Rules and it cannot give legal advice, it points to options the law provides: a lawyer uncertain what to do with safekeeping property may seek judicial guidance (N.Y. State 775 (2004)), and SCPA § 2507 lets a county Surrogate's Court receive and deposit a domiciliary's will for safekeeping (subject to fees). The committee references the Association's Planning Ahead Guide noting that original wills must be returned or preserved, and may be filed with the Surrogate's Court or deposited with an appropriate depository when the client cannot be found.

In practice

Under this opinion, a New York lawyer custodian who, after a diligent search, cannot locate the testators of original wills (whether the lawyer drafted them or inherited them through practice acquisitions) may not destroy or discard them. The opinion holds that a will is property the lawyer must safeguard indefinitely under Rule 1.15(c), unless the law provides a disposition route; it identifies seeking judicial guidance and filing the will with the Surrogate's Court under SCPA § 2507 as available avenues, while noting those are legal questions outside the committee's jurisdiction.

Common questions

Q: Can a lawyer destroy old wills if the testators cannot be found?

A: No. Per the opinion, a will is property under Rule 1.15(c) that the lawyer must safeguard indefinitely; the lawyer may not dispose of wills whose testators' locations or circumstances are unknown unless the law provides a way.

Q: Does it matter that the lawyer inherited the wills through buying another lawyer's practice?

A: No. Per the opinion, a lawyer who comes into possession of a will by acquiring a retiring lawyer's practice holds it as custodian and is subject to the same Rule 1.15(c) duties to preserve it and to take reasonable steps to locate and notify those with an interest.

Q: What lawful options does the opinion mention for wills that cannot be returned?

A: Per the opinion, the lawyer may seek judicial guidance about safekeeping property, and may file the original will with the county Surrogate's Court for safekeeping under SCPA § 2507; the committee notes these are matters of law outside its jurisdiction.

Background and rules framework

The opinion interprets New York Rule 1.15(c) (notifying, preserving, and delivering property in which a client or third person has an interest), treating an original will as such property. This corresponds to ABA Model Rule 1.15. The committee references, as matters of law outside its jurisdiction, SCPA § 2507 (deposit of wills with the Surrogate's Court) and the Association's Planning Ahead Guide.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.15(c)(1)-(4)
  • ABA Model Rule 1.15 (analogue)

Statutes (referenced, not decided by the committee):

  • New York Surrogate's Court Procedure Act § 2507

Other opinions cited:

  • N.Y. State 341 (1974); 775 (2004); 1035 (2014); 1133 (2017): custodial duties for wills and safekeeping property
  • N.Y. City 1999-05; Massachusetts Bar Op. 76-7: indefinite safekeeping of wills of testators who cannot be located

See also

Source