Can a Pennsylvania lawyer throw out old original wills when the clients can't be found?

Plain-English summary

The opinion "adopts and endorses New York State Bar Association Ethics Opinion 1182 ('Disposition of Wills') and explains its application to Pennsylvania-licensed lawyers who retain original, signed Wills in the course of representing estate planning clients." The New York opinion addressed an attorney holding more than 500 wills, some over 70 years old, whose testators could not be located, and concluded the lawyer could not dispose of them. The Committee finds Pennsylvania's Rule 1.15 similar to the New York rule on safeguarding client property.

Because "these original Wills and other documents are client property, lawyers have obligations under Pa.R.P.C. 1.15." The opinion explains that Rule 1.15(b) requires a lawyer to hold the property separate from the lawyer's own property and to identify and appropriately safeguard it, quoting that "a lawyer shall hold all Rule 1.15 Funds and property separate from the lawyer's own property." Rule 1.15(c) requires preserving complete records of receipt, maintenance, and disposition for five years after termination of the relationship or after disposition, whichever is later.

The opinion concludes that lawyers must maintain original wills until they provide them to the client or an authorized possessor, are notified the client no longer needs them stored (such as when the client executes a new will), or are authorized to dispose of them by statute, rule, or other procedure. As it states, "because Wills are client property under Pa.R.P.C. 1.15, lawyers must safeguard these documents indefinitely unless they are authorized to dispose of them by statute, rule or some other procedure." It adds that lawyers should securely store wills, keep client contact information current, and be able to notify clients when an office relocates or merges.

In practice

Under this opinion, a Pennsylvania lawyer holding original signed wills must keep safeguarding them and may not dispose of them when the testator cannot be located, absent authorization by statute, rule, or other procedure. The opinion holds that wills are Rule 1.15 client property subject to the separate-holding and safekeeping duty of Rule 1.15(b) and the five-year record-keeping duty of Rule 1.15(c), and that a lawyer may stop storing a will only on delivery to an authorized person, notice that the client no longer needs storage, or such authorization.

Common questions

Q: Can I dispose of old wills if I can't find the clients?

A: No. The opinion concludes lawyers "may not ethically dispose of original, signed Wills whose testators' locations and/or circumstances are unknown."

Q: Why are wills treated this way?

A: The opinion concludes original signed wills are client property under Rule 1.15, so a lawyer must safeguard them indefinitely unless authorized to dispose of them by statute, rule, or some other procedure.

Q: When can I stop storing a client's will?

A: The opinion concludes a lawyer may stop on delivering the will to the client or an authorized possessor, on being told the client no longer needs storage (such as when a new will is executed), or when authorized to dispose of it.

Q: What should I do with wills I am currently holding?

A: The opinion describes securely storing them, keeping client contact information current, notifying clients, and seeking client guidance on continued storage, especially when an office relocates or merges.

Background and rules framework

The opinion interprets Pennsylvania Rule of Professional Conduct 1.15 (safekeeping property), particularly 1.15(b) (holding and safeguarding client property) and 1.15(c) (five-year record retention). Pennsylvania Rule 1.15 governs the duty; the opinion adopts the reasoning of NYSBA Ethics Opinion 1182.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 1.15, including 1.15(b) and 1.15(c); safekeeping client property

Other opinions cited:

• NYSBA Ethics Op. 1182: disposition of wills (adopted and endorsed)
• PBA Formal Op. 2001-300: retaining estate documents

See also

• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• PA Bar Ethics Op. 2022-200: IOLTA Accounts for Real Estate Settlements

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: F2021-300.pdf