If a lawyer keeps a client's original will, does the lawyer have to track the client's death and file the will, and may the lawyer tell the executor it exists?
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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee addressed a lawyer's obligations when the lawyer keeps custody of a client's original will. It began by noting that a lawyer who drafts a will has no obligation to retain the original; the lawyer may give it to the client with advice on safekeeping. Whether the lawyer will keep the will, and what further duties that entails, are matters for the lawyer and client to agree on after consultation. Express or implied agreements can create contractual obligations (for example, to read death notices, or to file the will with the court on the client's death), but whether such obligations exist in a given case is a question of fact and law the committee said it could not resolve, since its role is limited to interpreting the Code.
The committee held that once a lawyer agrees to retain the original will, the lawyer may not destroy it and must keep it until the client requests it or the lawyer is legally obligated to produce it. Absent an agreement to the contrary, there is ordinarily an implied understanding that after the client's death, if the lawyer is holding the original and knows of no later valid will, the lawyer must take steps to ensure the executor or beneficiaries know the will exists. Quoting N.Y. State 521 (1980), the committee said the lawyer has an ethical (and possibly legal) obligation to notify those who may propound the will that the lawyer has it.
On confidentiality, the committee held that although the duty under DR 4-101 ordinarily survives the end of the representation and the client's death, disclosing the will's existence in this situation is permissible because the disclosure is impliedly, if not expressly, authorized by the client. As for additional duties such as monitoring for the testator's death or filing the will, the committee held those are determined by the lawyer-client understanding, not the Code; a lawyer has no ethical duty to watch obituaries or to file the will. The committee emphasized the lawyer should clarify in advance precisely what the lawyer will and will not do, so the client can make an informed decision.
Currency note
This opinion was issued in 1999, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Does a lawyer have to keep a client's original will?
A: No. The opinion concluded a lawyer who drafts a will has no obligation to retain the original and may give it to the client with safekeeping advice.
Q: If the lawyer holds the will and the client dies, what must the lawyer do?
A: The opinion concluded that, absent agreement to the contrary, the lawyer must ensure the executor or beneficiaries know the will exists, unless the lawyer knows of a later valid will. Disclosing the will's existence is permitted because it is impliedly authorized by the client.
Q: Must the lawyer watch for the client's death or file the will with the court?
A: Not unless the lawyer agreed to. The opinion held those duties are set by the lawyer-client understanding, not the Code, and a lawyer has no ethical obligation to read death notices or to file the will.
Background and rules framework
The opinion interpreted DR 4-101 (confidences and secrets) of New York's former Code of Professional Responsibility, with reference to EC 2-3 and EC 4-6. The Model Rule analogues are Rule 1.6 (confidentiality, including the implied-authorization principle) and Rule 1.15 (safekeeping property). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality; impliedly authorized disclosure)
- MR 1.15 (safekeeping of client property)
- NY DR 2-103(A); DR 4-101; EC 2-3, EC 4-6
Other opinions cited:
- N.Y. State 521 (1980): a lawyer holding a deceased client's will should notify the executor or beneficiaries
- N.Y. County 709 (1995): a firm's responsibility to carry out a lawyer's undertaking regarding a will
- Massachusetts Op. 76-7: a lawyer need not watch the obituary columns
See also
- NY State Bar Op. 1002: Disposing of wills held by a deceased lawyer
- NY State Bar Op. 1078: Confirming there is no will to a former client's son
Source
- Landing page: https://nysba.org/opinion-724/
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