[WSBAPT] Original Wills
Tom White
thomas.henry.white at gmail.com
Mon Mar 7 19:51:12 PST 2016
Thank you all for the additional thoughts on this today! You've provided a
lot of good, varied, and helpful information to think about in deciding
what's best for the client.
Kind Regards,
Tom W
On Mon, Mar 7, 2016 at 3:51 PM, Thomas E. Gates <tegatesesq at gmail.com>
wrote:
> 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 been superseded by subsequent estate planning documents.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
> >
> >
> >
> > _______________________________________________
> > WSBAPT mailing list
> > WSBAPT at lists.wsbarppt.com
> > http://mailman.fsr.com/mailman/listinfo/wsbapt
> >
> >
> > --
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> > Annis, P.S.
> >
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> > Thank You!
> >
> >
> >
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--
Tom White
Attorney-At-Law
Seattle, Washington
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