Do lawyers usually retain copies of estate planning documents?

[Kris989]

Jurisdiction

California

Do lawyers usually retain copies of estate planning documents (will, trust, power of attorney, etc.)? Ours did not. After we were done signing everything, he handed us the giant binder with all the documents. I asked if he would be keeping a copy on file, and it kind of surprised me when he said no, but then I don't really know what is customary/typical.

 

[Tax Counsel]

Do lawyers usually retain copies of estate planning documents (will, trust, power of attorney, etc.)? Ours did not. After we were done signing everything, he handed us the giant binder with all the documents. I asked if he would be keeping a copy on file, and it kind of surprised me when he said no, but then I don't really know what is customary/typical.

Does your fee agreement (contract) with the lawyer discuss retention of records? That's the first place to start to determine what his obligation is. Most attorneys will keep records of the entire file at least as long as the lawyer might be sued for malpractice as those records would be significant in preparing his/her defense. The state ethics rules for attorneys also specify which documents the attorney must retain and for how long, though those usually focus on documents that the client has provided to the attorney and documents that may be needed to establish or defend some claim for the client. Some of those responsibilities imposed by the ethics rules might be able to be changed by agreement with the client.

 

[Kris989]

We don't have a contract (that I recall) with the lawyer. We are members of ARAG, which provides free and discounted legal services for an annual fee (something I signed up for through my employer). The will and trust were drawn up for free (well, paid for by ARAG). If I recall correctly, I contacted the law office, and they had me call ARAG and ask for them to send 2 case assist confirmation forms to the law office, one for producing the will and one for producing the trust. We also sent the law office a filled out worksheet with details of our estate. We then showed up for an appointment with the lawyer a few weeks later, where he reviewed the worksheet, asked for more details, and explained a bunch of things to us (how the will and trust would work, what documents would be produced, etc). A few weeks after that he had the documents ready for us to sign. I don't recall ever signing anything like a contract with the law office at that time, but this was done last Fall, so I'm a bit rusty on the details.

 

[adjusterjack]

He's not obligated to keep file copies. Besides, if the documents are ever litigated it will be the originals that count.

Make duplicates if you like but keep the originals in a safe place where your trustees and executors can easily get access to them.

 

[Tax Counsel]

He's not obligated to keep file copies. Besides, if the documents are ever litigated it will be the originals that count.

I disagree on both counts. There are some copies that a lawyer must retain. And second, the lawyer is a fool for not keeping a copy of everything for at least the period for which he may be sued for malpractice. Copies often can be admissible if the original cannot be located.

 

[flyingron]

First thing I did with my trust docs is scan them in (fortunately, I've got a duplex scanner). Every time I close on a property, the settlement attorney wants a copy of the trusts we're titling to. Saves a lot of trees sending around copies of things.

 

[zddoodah]

Do lawyers usually retain copies of estate planning documents (will, trust, power of attorney, etc.)?

Yes.

Is there more to your question than that?

 

[Kris989]

I disagree on both counts. There are some copies that a lawyer must retain. And second, the lawyer is a fool for not keeping a copy of everything for at least the period for which he may be sued for malpractice. Copies often can be admissible if the original cannot be located.

Your last point about copies sometimes being admissible is really what I always had in the back of head. I've read responses to the question "what happens if the trust cannot be located?", and the common response is that a copy can sometimes be used (I assume it would take court proceeding and a judge to approve of it). So the advice was to make sure trustees and or beneficiaries have copies.

I would think a court is more apt to accept a copy held by the lawyer that drafted it (and in this case, also notarized all the signatures), than it would for example, from a beneficiary that could possibly be up to something illegal. My lawyer probably has unsigned copies in electronic form (the computer files he used to print the copies we signed), but he definitely did not scan the copies we signed.

 

[Kris989]

Yes.

Is there more to your question than that?

Well, I guess then I'm wondering why ours did not scan our estate planning documents and retain a copy. A question I'll ask next time I speak with him.

 

[Tax Counsel]

I would think a court is more apt to accept a copy held by the lawyer that drafted it (and in this case, also notarized all the signatures), than it would for example, from a beneficiary that could possibly be up to something illegal.

It's not who holds the copy that is itself significant. Instead, what happens if there is a dispute over validity is that a person (or persons) familiar with the document testifies in court that the document is indeed the one that you executed.

Wills are a special case. Typically for a will it is necessary to have the original document. A copy will not suffice for that.

 

[zddoodah]

I guess then I'm wondering why ours did not scan our estate planning documents and retain a copy.

Needless to say, only he knows for sure. However, the nature of the relationship that you described in your post #3 in this thread suggests a likely answer.

 

[Kris989]

Needless to say, only he knows for sure. However, the nature of the relationship that you described in your post #3 in this thread suggests a likely answer.

I wish you would elaborate. Absent that, I'm guessing ARAG only pays some fixed amount for the estate planning services, so you feel he probably just did the minimum required to fulfill his obligations.

 

[zddoodah]

I wish you would elaborate. Absent that, I'm guessing ARAG only pays some fixed amount for the estate planning services, so you feel he probably just did the minimum required to fulfill his obligations.

You are correct. If you had personally retained the lawyer and paid the full fee, the lawyer almost certainly would have retained copies. Based on my limited interaction with lawyers retained through prepaid legal plans, they get paid a fraction of a typical fee and do as little work as possible (a quantity over quality type situation). Of course, I'm speculating. Of course, not keeping paper copies is one thing, even if I did that sort of work, I'd still keep scanned copies since that costs nothing in terms of storage cost.