[WSBAPT] Original Wills
Thomas E. Gates
tegatesesq at gmail.com
Mon Mar 7 15:51:34 PST 2016
Thank you for providing the form. Very informative and has me thinking how I can incorporate it in my practice. Thanks again.
Tom
Sent from my iPad
> On Mar 7, 2016, at 11:16 AM, Mike Winslow <mike at winslegal.com> wrote:
>
> 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 been superseded by subsequent estate planning documents.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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> Thank You!
>
>
>
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