[WSBAPT] No Trust Document

[Philip N. Jones]

The one time I had to deal with an original misplaced by the decedent involved a decedent who, just two weeks before his death, told his neighbor that he had a will and he told the neighbor the name of the main beneficiary.  We were very lucky in that respect, and the judge had no problem probating the photocopy that the attorney had kept, showing the signatures.  But the problem is what will the judge do if you file a petition that says, "We don't know what Dad did with his original will, but none of us have any reason to think he revoked it, and Dad never said anything to any of us about revoking it."  Is that enough to rebut the presumption?  I sort of doubt it.
Does Washington have such a presumption?  In Oregon it is not statutory, but rather judicially created.
I hasten to add that none of these issues surface if the attorney kept the original.
I also hasten to add that keeping the original in the office of a sole practitioner who will eventually retire and/or die is problematic.  I am in a firm of a dozen estate planners and it is easy for me to preach about keeping originals, since our firm has been around since 1933 and will likely be around for decades and decades more.  It becomes my partners' problem.  We have some original wills that go back decades and decades. And the number keeps growing.  We have a statute that permits destruction of wills after a zillion years, but it is complicated, and it was written before scanning came along.  I understand that the Bar might be looking to revise that statute.  But even under existing law, if an attorney scans an original will and then destroys it, I see little downside.
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 <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>
www.bellanddavispllc.com<https://nam11.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.bellanddavispllc.com%2F&data=05%7C01%7Cpjones%40duffykekel.com%7C923331a472304daa1d2a08da95d9905b%7C2d66ed5354fa4c2f8c4dbff1aca5479d%7C0%7C0%7C637987058931079699%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000%7C%7C%7C&sdata=dgTCAiEyEyFPqZ0XDN8z6fASML59OnrJ%2F%2Flrc4b74q4%3D&reserved=0>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129.


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20220913/575a4bc6/attachment.html>