[WSBAPT] No Trust Document

Tue Sep 13 15:51:24 PDT 2022

I don't disagree with Phil about a firm, that seems to go on forever,
keeping the original Wills.  Of course, Bogle & Gates broke up one night
after 100 years.  I worry more about solos like me, that have a finite
existence, holding onto such documents.  My frustration are my clients lack
of ability to put the originals in a safe, locatable, place.  We require all
clients sign a receipt saying they are taking the originals, and a copy.
This year we had a client sign and take the original Will and then move to
New York State.  After the client died, the kids, one of which was hear with
the parent, said we had not given them the original.  The simple answer to
the NY lawyer was, the originals walked out the same door, and at the same
time, as the copy; if they have one, they have the other. 

Jeff

W. Jeff Davis

BELL & DAVIS PLLC

Attorneys at Law
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 
 <http://www.bellanddavispllc.com/> www.bellanddavispllc.com

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Roger Hawkes
Sent: Tuesday, September 13, 2022 3:42 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] No Trust Document

I recently had an inquiry from a couple who executed wills twenty ears ago
with a solo lawyer who died t wo years ago.  His widow says no files.  There
should at least be a clear document kept and findable forever as to who has
the original and how it was kept or delivered.  The word 'forever' frightens
me, though.  We give original and a copy to the client and keep an
electronic copy; paper and electronic copy are both admittable in Washington
provided there is extra statement in the petition about what happened and
whey it is unlikely the testator intended to revoke.

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
<wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Philip N. Jones
Sent: Tuesday, September 13, 2022 3:14 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com
<mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] No Trust Document

In Oregon, there is a judicial presumption that if the original will was in
the client's possession and cannot be found after death, it is rebuttably
presumed to have been destroyed with intent to revoke.  But if the attorney
loses the original, no such presumption arises and a photocopy can easily be
probated.  So I do not see much risk to my firm holding the original will.
Although we may have a duty to safeguard, I see little risk in a possible
breach of that duty.  Since the founding of our firm in 1933, I believe that
we have never lost a will.

The Oregon State Bar advises against keeping originals wills because of the
responsibility involved.  I do not agree.  It is a valuable service to the
client, with little or no risk to the attorney.  I always give the client a
choice as to where the original should be kept, and they almost always want
my firm to hold the originals.

As for accounting for the will, we informed the client on the date of
signing that we would hold the will.  I am not aware of any other duty to
account.  We place a rubber stamp on the client's copies informing the
client that the original is at our office.  If anyone finds the copy after
death, they know where to go to get the original.  If they want to use
another firm to probate the will, we gladly turn over the original to the
person named as PR in the will.

I know of one firm that has their clients sign two original wills.  Egads.

Phil Jones

Philip N. Jones

Duffy Kekel LLP

900 S.W. Fifth Ave. Suite 2500

Portland, OR 97204

pjones at duffykekel.com <mailto:pjones at duffykekel.com> 

(503) 226-1371 - office

(503) 853-1482 - cell

(503) 226-3574 - fax

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
<wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Roger Hawkes
Sent: Tuesday, September 13, 2022 2:57 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com
<mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] No Trust Document

Bear in mind that the original is client property and needs to be
safeguarded and accounted for as such.

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
<wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of Philip N. Jones
Sent: Tuesday, September 13, 2022 2:00 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com
<mailto:wsbapt at lists.wsbarppt.com> >
Subject: Re: [WSBAPT] No Trust Document

I do not have a solution to your problem, but I do have some related
comments.

I have always been an advocate for the firm keeping original wills and
trusts, not to generate business, but as a service to the client.  It is
very comforting when a client calls and says his Mom died, to say that I
have her original documents in my office.

Not everyone agrees with me.  People in smaller firms worry (rightly so)
about what happens when attorneys die or retire.  People in medium or large
firms have an easier time.

But at an absolute minimum, the attorney should retain a copy of all signed
documents, either in hard copy or in scanned electronic copy.  It is the
very least you can do.  Anything less is negligent.  Sorry to be so blunt,
but this is a service industry.

Phil Jones

Philip N. Jones

Duffy Kekel LLP

900 S.W. Fifth Ave. Suite 2500

Portland, OR 97204

pjones at duffykekel.com <mailto:pjones at duffykekel.com> 

(503) 226-1371 - office

(503) 853-1482 - cell

(503) 226-3574 - fax

From: wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com>
<wsbapt-bounces at lists.wsbarppt.com
<mailto:wsbapt-bounces at lists.wsbarppt.com> > On Behalf Of
Jeff at bellanddavispllc.com <mailto:Jeff at bellanddavispllc.com> 
Sent: Tuesday, September 13, 2022 1:13 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com
<mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBAPT] No Trust Document

Listmates:

Way back, well before the turn of the century, when I started practicing
law, the firm I joined had a large file cabinet full of original
Wills/Trusts.  It seemed like a nice way to generate work as the clients
passed on the firm naturally got to probate or administered the estate.
However, we also discovered attorney's pass on and the firm ended up needing
to disburse the original documents.  So we got away from that practice of
keeping the originals, and instead, trusted their safe keeping to the
clients.

Well, for the third or fourth time this year, a client cannot find the
original document, in this case, a living trust.  Client has no copy of the
trust agreement (even an unsigned copy) or even a trust certificate,
nothing.  (the lawyer who created it is long dead).  The house is in trust.
Client is the surviving spouse.  There are children, some of which the
client wants to disinherit.  

What should be done?  Will a title company insure the transfer of the house
out of trust to the survivor?  Do I just make up a new trust documents
calling it a restatement.  I am not sure if TEDRA is the way to go.

Your thoughts.

Jeff Davis

W. Jeff Davis

BELL & DAVIS PLLC

Attorneys at Law
P.O. Box 510

720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129 
Fax: (360) 683.1258 
email: jeff at bellanddavispllc.com <mailto:jeff at bellanddavispllc.com> 

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