[WSBAPT] Original Wills

Mike Winslow mike at winslegal.com
Mon Mar 7 11:16:59 PST 2016 

Having experienced too many problems with clients losing their EP docs, I
retain in my fire proof safe with written permission of client. I also have
in place that in the event of my untimely demise, the original will be
transferred to another law firm in town.
The form below is what I use for retention. Undoubtedly, it is imperfect and
someone will find fault, but I guess that's what we lawyers do......

ATTORNEY DIRECTIVE REGARDING RETENTION AND RELEASE
OF ESTATE PLANNING DOCUMENTS

	I, , a client of Michael A. Winslow, having executed on this date
certain legal estate planning documents including the following: 

		.	Last Will & Testament;
		.	Community Property Agreement;
		.	Durable Power of Attorney;
		.	Durable Power of Attorney for Health Care; and
		.	Directive to My Family and My Physicians.

have requested that you retain my estate planning documents in your
fireproof safe for safekeeping.

	A.	I will, therefore, keep you informed of any change in my
address.  I will also inform
you if I no longer require you to hold my original documents or if they have
been superseded by subsequent estate planning documents.

	B.	I understand that by doing so, you will take reasonable
steps to protect these
documents from destruction and that they will be held in a fireproof safe.
I also understand that no such protective measures are an absolute bar to
destruction and that I should retain a copy of my estate planning documents
in a safe place to be referred to in the unlikely event that the originals
are destroyed.

	C.	I further understand that by retaining the originals of my
documents, you will not 
automatically inform me of changes in estate or financial planning laws,
regulations or practices, and that it is my responsibility to review my
documents on a regular basis and inquire if changes are advisable.  I
understand that the volume of estate planning documents prepared by you, my
attorney, is great and it would be impractical, expensive to me and
extremely difficult for you to review all estate planning documents in your
safekeeping for recommended modification.  I accept as my responsibility the
need to review my own documents on a regular basis and to inform you if
changes in my situation (e.g. births, deaths, change in marital status,
change in value or types of assets, contemplation of the need for long-term
nursing care, etc.) may require review by you.  I also understand that mere
passage of time is a change warranting review and that I should look over
these documents at least every two years.

	D.	Included in the documents held by you are Powers of Attorney
forms which provide
for the appointment of a person or persons to act for me as my agent for
health care matters and/or for business matters.  With respect to these
documents, I hereby direct and authorize Michael A. Winslow as follows:

		1.	If at any future time you are contacted by my
designated agent, you are authorized to conduct such inquiry as you believe
appropriate to determine if delivering the original or a copy of any Power
of Attorney or other document to such person or others is appropriate. You
understand that I may not have informed my agent of the existence of the
Power of Attorney for many reasons which do not reflect on my trust and
confidence in such agent.

		2.	If at any future time that you are contacted by my
designated agent, you are authorized to conduct such inquiry as you believe
appropriate to determine if I am disabled as defined in my Power of
Attorney, including requesting a written statement from my treating
physician in a form which meets the requirement of my Power of Attorney; and

		3.	I acknowledge that in undertaking the foregoing
actions on my behalf or for my protection, and in the ordinary course of
working with my agent, you may be obligated to divulge confidential
communications received in the course of your attorney-client relationship
with me, and I authorize you, in your discretion, to do so where reasonable
or necessary to protect my wishes and interests.

	E.	Notwithstanding the above, included in the documents held by
you are a Health Care
Directive and Health Care Power of Attorney (which may be a part of a Power
of Attorney for business and health care matters).  With respect to these
documents, I hereby direct and authorize Michael A. Winslow as follows:

		1.	If at any future time you are contacted by any
family member, emergency personnel, health care provider or other person who
states that an emergency or medical situation exists where any one or more
of these documents are needed, you are authorized to conduct such inquiry as
you believe appropriate to determine if delivering the original or a copy of
any document to such person or others is appropriate; however, because time
may be of the essence, you are authorized to conduct such inquiry by phone
or otherwise and need not inquire beyond the person contacting you.

		2.	Because I recognize the need to act quickly and
acknowledge that such action is more likely to result in release of
otherwise confidential information to third parties than otherwise would be
the case, I hereby release you from any obligation to conduct inquiry other
than what you deem appropriate under the circumstances after talking with
the requesting party.

	In witness of this, I have signed on the _____ day of  .


	
____________________________________
							
Michael A. Winslow
1204 Cleveland Ave.
Mount Vernon, WA 98273
Ph. 360-336-3321
Em. Mike at winslegal.com

This message is from an attorney, so it's confidential. If you are not the
intended recipient, it's too late to stop reading this message, but you may
not use it for any improper purpose. Huge Disclaimer available upon request.

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Monday, March 07, 2016 10:11 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Original Wills

I LOVE that solution to the original Will storage problem, at least for ones
kept by the attorney. But can we make it comply with RPCs regarding
preservation of client property? Maybe it would require a signed agreement
from the client ahead of time, acknowledging that the original Will would be
scanned and destroyed after ___ years, but that destruction would not revoke
it?

It also brings to mind - at some point the technology changes should have an
impact on the significance of an original Will. I can foresee the eventual
creation of an electronic Will, once equivalent procedures for security,
authentication, intent, capacity, etc. are worked out. 

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Thomas M. Culbertson
Sent: Monday, March 07, 2016 9:47 AM
To: 'WSBA Probate & Trust Listserv'
Subject: Re: [WSBAPT] Original Wills

The practice of attorneys keeping original wills seems to be increasingly
frowned upon (by the WSBA, some E&O carriers, my partners who wonder why we
pay for all these large safe deposit boxes), but I still think the clients
are best served by us keeping them. I give my clients the choice and I bet
98% opt to have us keep them.  Clients can't be trusted to keep them (at
home, I can't either), and there is always the risk of a black sheep family
member getting a hold of it when Mom goes to a nursing home or hospice. I
have had more than one family member tell me that "I know Mom had a will
which disinherited brother, but I can't find it anywhere." 

One possible solution I've toyed with. A lost original is presumed to have
been destroyed with intent to revoke, but as we all know the presumption is
rebuttable. If we as a firm had a policy of destroying all original wills
more than ___ years old but keeping a digital copy, wouldn't an affidavit to
the effect that that's why the original is gone be more than enough to
overcome the presumption?  If I time things right, my firm will adopt such a
policy and not have to present such an affidavit until sometime after I
retire.   

________________________________________
THOMAS M. CULBERTSON  I  Lukins & Annis, PS
717 W. Sprague Ave, Suite 1600, Spokane, WA 99201
(509) 455-9555  I  fax (509) 363-2500  I  tculbertson at lukins.com 


-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Melinda Grout
Sent: Monday, March 07, 2016 9:11 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Original Wills

Good morning all.

Having assisted in the wrapping up of two practices of attorneys who died,
and dealing with original documents of clients who have moved, etc, I have
learned that the practice of sending ALL original wills and other documents
home with the client serves them best.  The alternative would be filing in
the court's Will Repository.  I always include in my conversation with
clients, at the time of execution of the documents, a detailed conversation
about where to keep their originals, essentially giving the advice that I
have seen many give in this thread.  Also, I cannot count the number of
clients who are not able to retrieve originals from prior attorneys because
the attorney retired or change firms, etc.   I have also seen unethical
attorneys who simply keep the originals as a veiled marketing strategy,
since clients then have to to come back to them when in need of updates,
probate, etc. 

Just my opinion on the subject after (what I hate to admit are) decades of
experience... ;)

Melinda Grout

 

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