Ethics Opinion

Opinion No. 76-7

July 1976

Summary: A lawyer who succeeds to the practice of another attorney, including files with wills which the prior attorney's clients requested him to hold for safekeeping, is obligated to make a reasonable effort to locate the testators and, in the case of a testator who cannot be located, to retain and safeguard the will, or to deposit it in court pursuant to G.L. c.191, S10.

Facts: An attorney takes over a law practice from another attorney, whose files include wills which clients had requested him to hold. The successor attorney, in attempting to return the wills to the respective testators, finds that many clients cannot be located. He desires to know his obligations.

Discussion: "(A) lawyer should act with competence and proper care in representing clients," EC 6-1. A client who retains an attorney to draw a will, leaving the executed instrument with the attorney for safekeeping, obligates the attorney, if he accepts the will, to use reasonable care to keep it secure. He may, of course, at any time return it to the testator, making sure that it reaches the latter safely, or he may deposit it with the appropriate court, on payment of the $5 fee provided for by G.L. c.191, S10.
If the lawyer cannot find the testator and does not wish to deposit the will with the appropriate court, he remains obligated to use reasonable care to keep it secure. While he need not watch the obituary columns, if he does learn of the testator's death, G.L. c.191, S13, requires him either to deliver the will to the executors named therein, or to file it, within 30 days after he receives notice of the testator's death, in the probate court having jurisdiction over the proceedings.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.