Going through the process of creating a last will and testament can be challenging, and according to a Caring.com survey only 42 percent of American adults have estate planning documents ready. Caring.com, “More Than Half of Americans Adults Don’t Have a Will, 2017 Survey Shows,” https://bit.ly/33pxjkY. But getting clients to prepare end-of-life documents is only half the battle for practitioners. The other half, which often gets overlooked, is to ensure that the will is known to others and can be easily located when it is needed. Far too often, people spend their hard-earned money on legal services to prepare a will, but the document does not get probated because no one knows that the will was made or where it is stored.
Being unable to find a testamentary instrument is not a new problem. Whether a client misplaced a will, a client moves away without informing the drafting attorney where she has moved, or an attorney dies or retires without properly transitioning his practice, there are many opportunities for a testamentary instrument’s location or even its existence to become unknown. Proactive practitioners and clients have found ways to mitigate this risk over the years, but still the problem exists. For example, state or local bar association listservs sometimes contain requests from attorneys seeking to find a will. These e-mails allow an attorney searching for a will to contact a broad group of practitioners who may have prepared and stored a will in a way not possible in the past. However, mass e-mails have their limitations, narrowing the search to those who are on the listserv and are actively reading each message sent. Other solutions, such as saving copies of wills on a computer rather than having only a paper copy that can easily get lost or damaged, can also be limiting if a family member or attorney does not know that the digital copy exists or what device to search.
Instead of relying on these types of fragmented solutions, technology such as digital registries can help provide new solutions to this old problem. For example, The US Will Registry (the Registry) offers practitioners and clients a tool solely dedicated and designed to help ensure a testamentary instrument is not lost. Founded by the author, a team of 33 estate planning attorneys contributed the requirements necessary to create a will registry that would be user-friendly, easily accessible, effective, and secure and that would help practitioners protect client confidentiality. The Registry has collected information provided by attorneys and their clients regarding the location of testamentary instruments since 1997. This registration service, which is provided free of charge and earns revenue through fees to search the database, gives the national estate planning community a central repository for registering the location of any testamentary instrument. This article is intended to help practitioners develop practices to avoid a testamentary instrument from becoming lost, including the use of the Registry, and the ethical considerations surrounding these issues. It also provides an explanation of how those who are searching for a lost will can use the Registry.
Finding Ways to Keep Track of Estate Plans
The Registry is committed to ensuring that every valid testamentary instrument is probated and that no decedent who invested in estate planning documents loses out on her benefits because a document is lost. Though the Registry serves as an important tool to help ensure a testamentary instrument is not lost, it is only part of the solution to the lost will problem and is designed as a tool of last resort to find missing wills. As such, practitioners would serve their clients well to take the following four steps to avoid lost wills, explained in greater detail below: (1) establish internal procedures to ensure safe storage and a clear chain of custody of the original documents, (2) create a succession plan for their legal practice, (3) educate clients, and (4) register the will.
Establish internal procedures to ensure safe storage and a clear chain of custody of the original documents. It is incumbent upon attorneys to maintain document retention and chain of custody policies. This involves not only storing estate planning documents in a safe and secure environment, such as a fireproof safe or commercial storage service with appropriate facilities, but also logging where the document is located and keeping current contact information for clients. This can often be difficult as many clients come to an attorney only for the limited purpose of estate planning documents. But, as a matter of diligence in being able to locate the client if need be and for purposes of encouraging contact with a client, attorneys should provide efficient methods for a client to reach the attorney’s office with updated contact information. Finally, attorneys are strongly encouraged to retain digital copies of testamentary instruments and provide them to clients. In many jurisdictions, even if a will is lost, a digital copy may suffice if the proponent of the digital copy can overcome any presumption or argument that the testator revoked the will when the original cannot be found.
Create a succession plan for your legal practice. Estate planning attorneys spend their careers advising clients why and how to plan their affairs so there is a seamless transition even if the client becomes unexpectedly incapacitated or deceased. Attorneys, however, often do not like addressing their own mortality any more than their clients do. Some attorneys who practice in larger firms already have a succession plan in place by virtue of the firm’s structure and procedures. Solo and small firm practitioners must be more proactive to ensure that they fulfill their ethical duties and have a succession plan in place. Rule 1.3 of the ABA Model Rules of Professional Conduct imposes a duty of diligence in representing a client and protecting the client’s documents. In Formal Opinion 92-369, the ABA’s Standing Committee on Ethics and Professional Responsibility stated that “[t]o fulfill the obligation to protect client files and property, a lawyer should prepare a future plan providing for the maintenance and protection of those client interests in the event of the lawyer’s death.” See also ABA Model Rules of Professional Rule 1.3, comment 5.
Many state bar associations offer guidance to attorneys on how to prepare a succession plan. For example, the New York State Bar Association has published the “NYSBA Planning Ahead Guide: How to Establish an Advance Exit Plan to Protect Your Clients’ Interests in the Event of Your Disability, Retirement or Death,” which is a comprehensive resource available without cost to help practitioners address this issue.
Educate clients. In preparing an estate plan, an attorney is more than a scrivener or master of the rules of succession. An attorney is also an advisor who is responsible for educating a client about how the estate planning and probate process works. This means going beyond translating technical terms into the vernacular. The advisory role also requires the attorney to impart her experience and practical knowledge onto the client. A good “belt and suspenders” approach to recommend to a client is that the attorney should have in her records the contact information for whom to contact upon the death of the client (the named executor or a close family member) and that someone other than the decedent should know whom to contact to obtain the testamentary instrument. This could lead to a broader discussion of the client preparing a “death dossier,” which should contain important documents such as a contract with a funeral home, a cemetery deed, a list of financial accounts, and the contact information for the attorney, which she could either give to a family member during life or let the family member know where to find it upon the individual’s passing. Helping a client develop a system to get information into the hands of those left behind will allow them to give an invaluable gift—peace of mind—instead of putting the bereaved in a situation where they are struggling to find information while mourning the loss of a loved one.
Register the will. If a will still is lost, even after putting solutions in place such as establishing a chain of custody and succession plan, registering the will with a third party can serve as a crucial last line of defense. In some states, wills can be registered with the secretary of state or probate court, which may be helpful for some, but it can still cause issues if family members do not know which jurisdiction the will was registered in. A national repository such as the Registry can be a useful tool for practitioners to consider when developing their internal procedures and succession plan, as it provides a centralized way to search for wills. The Registry was established because, until its creation, the United States did not have a national database, whereas other countries have had them for decades.
Though attorneys may rightfully be concerned with the safety of registering a will, it’s important to note that the Registry does not store the testamentary document itself, nor does it contain any of the provisions of the will. The Registry only records the location of the document. To protect this still-sensitive information, the Registry’s databases are protected by a robust overlay to a secured ConfigServer Security & Firewall (CSF). Any attempt to penetrate the firewall will cause the site to lock up, and the backup servers that host the data for the site are not accessible via the internet, in order to prevent online hacking.
There is no fee to register a will or codicil with the Registry. An attorney who wishes to register a will simply needs to go to its website at www.theuswillregistry.org where she will find an easy-to-navigate system. From there, attorneys can create a password-protected profile in which to manage all of the information they have put into the system. This is an especially useful feature if an attorney moves the location of the actual documents. When registering a will, all the attorney needs to provide the Registry is: (1) the client’s name, (2) the client’s date of birth, (3) the location of the testamentary instrument(s), and (4) a list of those who are entitled to have access to the information. For reasons explained in greater detail later in this article, attorneys should obtain the informed written consent of a client before providing information to the Registry. An attorney can even refer a client directly to the Registry, and the client may register her own documents at no cost.
For those who are searching for a will of a deceased individual, including an attorney representing such individuals, the Registry provides a simple search mechanism. A party searching for a will simply needs to input the name and date of birth of the decedent. When there is a match, then the person searching for the will must provide her identification and a death certificate to the Registry before any information is released. Once proof of death is verified, the contact information for the attorney storing the document is provided. Also, if no match is found for a missing will, the search then gets entered into a missing will search database. Only attorneys who have created a profile with the Registry can search this missing will database to see if any of their client’s family members are searching for a will in their state or county. This helps attorneys and families find each other if the deceased did not have a registered will.
Lastly, to practice what we preach regarding succession planning, attorneys and individuals can rest assured that all records of the Registry would be sent to the Florida Bar in the event the corporation ceases to exist. The Registry is incorporated in Florida and has designated the Florida Bar as its file custodian in the event of a dissolution.
Ethical Issues and Considerations
In using the Registry, practitioners should be mindful of the professional rules of conduct governing their respective practices. As the effectiveness of the registry depends upon widespread participation, it has been developed with these ethical considerations in mind so that ethics are not a barrier to attorney participation. Given that the legal profession is struggling to keep pace in both using technology as a tool and in determining set rules for its use, the Registry will continue to make changes as necessary to allow for broad participation. To that end, the Registry collaborates with attorneys in various jurisdictions to keep abreast of changes and encourages any attorney to reach out with suggestions to ensure that the Registry can comply with the rules of each jurisdiction. To demonstrate that the Registry considers these important issues, this article raises two important concerns attorneys should have and how the Registry addresses them—first, the duty of confidentiality and, second, the duty of competent representation.
First, as attorneys well know, the ABA’s Model Rule of Professional Conduct 1.6(a) provides that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…” Although there are exceptions to the requirement of an attorney to get informed consent under Rule 1.6(b), none of them are applicable to disclosing information to the Registry. Registering a testamentary instrument with the Registry does not store the contents of the document, but it does contain the name of an attorney’s client. The name of the client is confidential information and cannot be available on the Registry without the informed consent of a client. See, e.g., the ABA’s Standing Committee on Ethics and Professional Responsibility, Formal Opinion 10-457 (August 5, 2010). Attorneys should ensure compliance with their local jurisdictions’ rules of confidentiality and informed consent. It is important to note that the Registry does not ensure that attorneys are complying with this ethical rule, as the onus is on the attorney. The attorney, not the Registry, is responsible for obtaining informed consent from a client. See ABA Model Rule of Professional Conduct Rule 1.0(e). To assist attorneys in complying with this obligation, the Registry would suggest the following:
Suggested Model of Informed Consent
I, __________, hereby authorize the Law Offices of ___________ to post my name, the location of the Will, and the name of this law firm as the attorneys who prepared my Will on The US Will Registry. I understand that a copy of my Will is not provided to the Registry, but rather, only the information necessary to locate the Will. I understand that this information will only be released upon my death and subsequent search by a loved one who is able to provide proof of my death.
______________________ Signature ______________________ Date ______________________ Email Address _____________________ Date of Birth ______________________ Address
Obtaining informed consent, though essential, may not be the end of an attorney’s obligation, as states are still grappling with how rules that were created well before technological resources were available or even imaginable. As such, attorneys should be vigilant as to the changing rules and what guidance is in place at any given time.
Twenty different jurisdictions have issued guidance as to the use of cloud computing. That guidance generally imposes a duty on attorneys to use reasonable care in using such technology. From a technological standpoint, the use of the Registry is similar to the use of cloud computing for client records, which can help inform attorneys as to their obligations under their respective rules of professional conduct. What is reassuring about the guidance that is available is the fact that an attorney fulfilling her duty of competence, as discussed above, will be exercising reasonable care in using the Registry to assist clients. The ethics opinion that is most relevant is California’s Formal Ethics opinion 2007-173, which states that:
an attorney who seeks to register a will or other testamentary document, with or without client consent, has a duty to act competently. In that regard, an attorney registering information about a testamentary document has a duty to determine whether the registry adequately protects the interests of the client and otherwise complies with California law.
The Registry remains available to all attorneys to address specific concerns. In determining what issues an attorney should scrutinize, the factors set out in Opinion 842 of the New York State Bar Association’s Committee on Professional Ethics sets forth the following issues:
(1) ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;
(2) investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;
(3) employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored; and
(4) investigating the storage provider’s ability to purge and wipe any copies of the data, and to move the data to a different host, if the lawyer becomes dissatisfied with the storage provider or for other reasons changes storage providers.
The Value of the Registry
As more and more attorneys learn about and use the Registry, the more valuable the tool becomes because of the national pooling of information. An extra 15 minutes is all an attorney will need to add to her estate planning process with clients to obtain their informed consent and register the document. Those 15 minutes can save the cost and potential harm of spending substantial time searching for a lost testamentary document. It also mitigates the risk of a document becoming lost forever. Attorneys are welcome to visit the Registry online and contact representatives of the organization to learn more about how it helps solve the issue of lost wills, as well as to give the Registry the chance to learn how it can evolve to better serve the needs of practitioners.