SIDEBAR Summer 2021 - 14

MONTGOMERY B AR .O R G
Storing Clients' Wills:
PBA Formal Opinion
2021-300
By Rebecca Sallen, Esq.
Vice-Chair, Probate and Tax Section
O
n March 25, 2021, the Pennsylvania Bar Association's
Legal Ethics and Professional Responsibility Committee
issued a formal opinion that affects attorneys and
firms who create and store their clients' wills.1
The Committee
concluded a will is a property, therefore it must be treated
similarly to other types of a client's property by adopting New
York State Bar Association Ethics Opinion 1182 ( " Disposition
of Wills " ). Under Pa. R.P.C. 1.15, an attorney is required
to safeguard client property, keep it separate from his or
her property, and take appropriate steps to safeguard these
documents. Pa. R.P.C. 1.15 (c) additionally requires attorneys
to preserve client property " for a period of five years after
termination of the client-lawyer/fiduciary relationship or after
distribution/disposition of the property, whichever is later. " The
Committee concluded that an attorney would be required to
maintain original wills until they 1) were given to the client, the
client's executor, or an authorized person, 2) are notified that the
client no longer needs the will to be stored, or 3) are authorized
by statute, rule or other procedure to dispose of the documents.
The Committee did not state whether the same requirements
would be applied to copies of a will or if similar guidance would
apply to a trust or other estate planning documents.
The Committee did make several recommendations for
attorneys who store their clients' original wills. Attorneys are
strongly advised to 1) review their files for signed wills and
other original documents, 2) take steps to obtain and confirm
current contact information for every client whose will they
possess, 3) notify clients that they are in possession of their will,
4) notify their clients if the attorney moves or changes contact
information, and 5) obtain guidance from clients to determine
if the attorney should continue storing the documents, return
them, or meet with the clients to review and revise their wills.
Because wills are deemed to be treated as client property,
this Opinion from the Committee underlines the duties that
attorneys have to their clients and the safeguards that the
attorney must abide by when they agree to store their clients'
wills.
1 Formal Opinion 2021-300; https://www.pabar.org/members/catalogs/Ethics%20Opinions/formal/F2021-300.pdf
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http://montgomerybar.org https://www.pabar.org/members/catalogs/Ethics%20Opinions/formal/F2021-300.pdf

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