"Who is My Client?"

Here's a paradox.......

"An attorney's ethics are directly proportional to the number of ethical issues he encounters".

This is because the most ethically aware attorneys will SEE issues as they arise, while the ethically challenged will be unaware of the problems they are about to encounter.

I wonder how many law students have taken an ethics course, and exams, and thought, "This is all academic; these things don't actually happen."  Well, it's true in one way.....real practice is WAY stranger, and much more ethically challenging, than any law school exam.

If your practice is presenting you with ethical issues to resolve, you are not an unethical attorney. More likely you are highly ethical, and your diligence will serve you and your clients well.

At the core of many of these situations is a recurring question.......WHO IS MY CLIENT?

This arises in many contexts, but is especially prevalent in elder law, estate planning, and estate administration. Here are a few examples:

1. An elderly man and adult daughter make an appointment for "Dad to do a will" but the daughter is doing all the talking.

2. A person calls you and inquires about your fees because "Mom wants to sell her house".

3. A person calls you regarding petitioning for guardianship for their incompetent parent. Upon meeting the parent and adult child, you agree the person needs a guardian, but you then receive a call from another adult child, stating that the sibling you met with cannot be trusted with money.

4. Same scenario as #3, except when you meet the parent they tell you quite clearly that they don't want or need a guardian.

5. Same scenario as #4, except when you meet the parent a second time, they seem to have deteriorated mentally....Upon telling this to the two children, the first one tells you this is how it has been going, and the second one tells you that the other child has not been giving the parent their medication.

6. You are contacted by the child of a person who died six years ago. There is no will. The person who contacted you lives in the house owned by the decedent, and has lived there his whole life. There are three other children who do not live there, and have not taken any action, until recently they began to inquire. The person who contacted you wants to be the fiduciary.

All these scenarios are real. In fact, they are situations I have encountered in the past year alone! These situations have one thing in common. One cannot proceed until determining "who is the client?" and reconciling that with the appropriate ethical issues. Very often one CAN proceed but must (or should) obtain proper waivers from parties who could later criticize the conflict. Whether we get written waivers or not, prudence dictates documenting what we are doing and why.

Something I always do if a parent and child are in my office, and I sense a "Who is my client" situation.......I tell them that at some point I MUST meet with the parent alone, and I mean ALONE, and that I am doing this for their benefit. When I meet with the parent alone, I make very clear that I am THEIR attorney, that we have attorney client privilege, that I will not do anything they don't want, that they can call me on their own if they wish, etc....and, I DOCUMENT MY FILE that I have had this meeting. In some cases, I will ask an associate to sit in on the meeting, and make notes as well. It is THAT important.

It usually takes some work to untangle these initial ethical issues. Don't succumb to the temptation to ignore the issues.

A related paradox is -

"the person who doesn't want you to spend time resolving the ethical issue, is the one who really needs you to resolve it".

In estate planning matters, don't be afraid to ask yourself "How is this going to look later?", and don't be afraid to ask that person (client?) across the desk "How is this going to look later?

I like being able to do right, and have it LOOK right.  And what I tell the potential client, because it's true is:  WE WANT A RESULT THAT WILL STAND  (sorting out the ethical stuff really boosts the success likelihood.  Most clients understand and appreciate this)

Probate - The Non-Dirty Word

The word "probate" is often tossed around as something to be avoided.  As if the failure to avoid it were a mark of stupidity, or symbolized a lack of care or planning.

On some level if a person does extensive planning, and has ALL their assets with named beneficiaries, or if a person creates a trust (AND takes the additional step of transferring ALL their assets to the trust), probate can be avoided.

But what is actually being avoided?  Is avoiding it worth the effort?

What is probate, actually?

In New York, probate means that a Will has been recognized by the Surrogates Court as proper.  The end result is that somebody (usually the person named as Executor in the Will) receives a document from the Court called "Letters Testamentary".  That is the Executor's proof that he/she has authority to act on behalf of the Estate.

When there is a Will, in order to transfer any asset that was owned in the name of the deceased person, you need Letters Testamentary.  This applies to bank and brokerage accounts, real estate, co-op apartments, and any other assets.

If you are named as an Executor in a Will, and you have the original Will and a death certificate, can you go into a bank and close out a deceased persons account?  Nope.  The bank will tell you to come back with Letters Testamentary. What they are really saying is "get the will probated".

Probating a Will is a Surrogate's Court proceeding.  The specific facts and circumstances will determine whether it's simple (and many times it is) or complicated.

I've heard people say that many procedures were "invented by lawyers to make things complicated so lawyers can make money".  I see it quite differently, and I would summarize the need for these proceedings as follows:

"There is no end to the creativity and deviousness of some people when it comes to not doing what is proper, ethical, moral and legal.  The court proceedings are designed to protect the wishes of the person who made the Will, as well as to protect those who the decedent intended to inherit.  Related to that is sometimes it's just not clear that the "Will" in question is actually what the person wanted. The procedures are designed to make sure the people affected by the Will are notified and that they have an opportunity to be heard (if there is some issue worth hearing)" 

Since there is no way for the Court to know in advance whether a particular Will has "issues", all Wills have to follow the procedures.  That being said, VERY often you can identify the interested parties, they can all sign a "Waiver and Consent", and the Will can be admitted to probate (and Letters Testamentary issued) pretty quickly.

Does it take some legal knowledge and time and experience to probate a Will? Sure, but in friendly situations (which is often the case) the fees should not be onerous.  If they are, call a different lawyer. Can the fees become substantial if there are issues with a Will?  Certainly, but we lawyers didn't create a system to encourage that.  Personally, I'd rather earn modest fees in friendly situations, as opposed to bigger fees from dysfunctional family feud cases.  But hey, we can only play the hands we are dealt.

Probate is not a dirty word.  It's a necessary proceeding so that a Will can be carried out.  Next post, issues that can arise which may add complexity.

Important "Little Things" That Affect Probate

When we "probate" a Will, we are having the Court recognize it as official and proper.  The Court then grants "Letters Testamentary" to the Executor, so they have authority to act.

When starting out with a probate proceeding, there are certain things to determine right off the bat.  These are important because they determines how simple or easy your proceeding is going to be.

Here are 3 important ones:

1.  Does the Executor have the ORIGINAL Will.  This is very important, and quite frequently clients come in and all they have is a copy.  Copies can be probated, but it is much harder.  When the client doesn't have the original, serious efforts must be made to locate the original.  Some of the places I suggest the clients look are:

- The decedent's papers and records.  They usually say they looked.  I suggest they look again.
- Safe deposit box.  If the decedent has one, very often the Will is in there. Getting it out after the person has died takes some legal work.
- With the drafting attorney.  I don't generally hold original Wills, but many attorneys do.  I suppose it increases their chances of getting the probate. Anyway, sometimes we have to extract the Will from the drafting attorneys, and sometimes it's a royal pain.  What if they died?  Moved?  Lost it?
- On file with the Court.  Many lawyers don't know a Will can be filed while a person is alive.  I've done this a few times, usually when I am concerned that an angry relative might get access to the decedent's Will and destroy it.
- In the possession of another family member.

2.  Did the witnesses execute a "witness affidavit"?  A will does not have to be notarized.  The legal requirement is that it be "signed in front of two witnesses". However, best practice for will execution is to have the Will signed in front of two witnesses and then have the witnesses sign an Affidavit, attesting that everything was done that needed to be done.  When this Affidavit is with the Will, you don't have to locate and contact the witnesses.  When the Will doesn't have the witness affidavit, and you want to probate, you have to find the witnesses and get them to sign an Affidavit.  What if their signature is illegible?  What if they died?  Moved? Don't remember anything?  I've encountered all of these.  Generally the problems can be solved, but it's much more work!

3.  Can we identify and locate the "distributees".  These are the people who would inherit under intestacy.  In a probate proceeding you have to get jurisdiction over them, as they are the only people with standing to contest the Will.  It's difficult when you (or the client) don't know who they are and/or where they are.  Also, sometimes these people present other problems.....dead, missing, mentally incompetent, incarcerated, questionable paternity, etc.  A drafting attorney should obtain this information, and press for it even if the Testator doesn't want to give it. This saves a ton of trouble and expense later.  When analyzing a new probate, the first and most important issue is always "what will be involved in getting jurisdiction?"

Sometimes potential probate clients ask "How much will it cost to probate a Will?" I would not offer a quote without at least inquiring about the these important "little things".

Filing a Will With the Court for Safekeeping

Questions sometimes arise about where to keep a Will, and who to tell about a Will. In a perfect world, where families are close and people communicate openly, this would not be an issue. The person who makes a will should discuss it with his trusted family members and tell them where the will is, confident in the knowledge that when the time comes, the will will be found and its terms carried out. 

Unfortunately, sometimes it's not that way.  Sometimes clients have to resort to deception and skulduggery just to make their will, and they want to keep it a secret.  Sometimes they are comfortable having people know they made a Will, but they don't want the location of the Will to be known.  

In those situations I always look at whether anyone with access to the will would benefit from its disappearance. I recently had a client whose closest living relative is a nephew. He likes the nephew well enough, but they are not close. He has the nephew in the will for about $50,000, has some other cash bequests, and leaves the rest (about $400,000) to his best friend, and if his best friend dies first, to his friend's family.  I know this client long enough and well enough to know this is all legit, but he is very concerned that his nephew would be called to his residence if he died, and the will would not be secure.  (As an aside, in my view a person would have to be conscience-less to destroy a Will, but sadly there are a lot of folks like that)  My client is uncomfortable keeping the Will in a safe deposit box, and uncomfortable about leaving it with me.  I suggested that we file the Will for safekeeping with Surrogates Court, while he is still living.  

Many people, including lawyers, don't know you can do this.  You CAN, and it can be very useful.  It costs $45 to file.  The benefit of this is clear:  A person who doesn't like the Will can't get at it.  Furthermore, if the person dies and the bad person tries to file an Administration proceeding as if there were no Will (which is what they always do), the Surrogates Court clerks ALWAYS checks for wills on file.  This stops the bad guys in their tracks.  I have filed wills for safekeeping quite a few times in the last 30 years.  I know of a few instances where it prevented mischief.  Just as important though, is that the clients always felt better having done it, and they always appreciated the advice.

Filing a Will for Safekeeping

Questions sometimes arise about where to keep an original Will, and who to tell about a Will. In a perfect world, where families are close and people communicate openly, this would not be an issue. The person who makes a will should discuss it with his trusted family members and tell them where the will is, confident in the knowledge that when the time comes, the will will be found and its terms carried out.   In reality, things are not always that way.

Sometimes a person making a will has good reason to make the will but keep it a secret until after they pass.  Sometimes they even resort to deception and skullduggery to make their will but keep it a secret.  Often times they have to do this to prevent the skullduggery of others.  

I always look at whether anyone with access to the will would benefit from its disappearance. I recently  had a client whose closest living relative is a nephew. He likes the nephew well enough, but they are not close. He put the nephew in the will for about $50,000, made some other cash bequests, and left the rest (about $400,000) to his best friend.  If his best friend dies first, then it would go to to his friend's family, who he likes much more than his nephew.  I know him long enough and well enough to know it's all legit, but he is very concerned that his nephew would be called to his residence if he died, and that the will would "disappear".   He also is uncomfortable keeping it in a safe deposit box, and uncomfortable about leaving it with me. 

I suggested that we file it for safekeeping with Surrogates Court, while he is still living. Many people, and many lawyers, don't know you can do this, but you CAN.  This can be very useful.  It costs $40 to file. Whenever anyone files an Administration proceeding (claiming there is no will), the Clerks ALWAYS check for wills on file. Sometimes it's a real surprise for the bad guys when they find out a Will is on file.  I have filed wills for safekeeping about 15 times in the last 30 years.   One time my client left a "fake" will in his house on purpose, and filed the real (later) one with the Court.  Whenever I have filed a Will for safekeeping, I always knew it was the right move, and the clients not only appreciated the advice, they were greatly relieved.  

Who Should Really Make a Will? (You might be surprised)

Who Should Really Make a Will?

The answer to this question starts with a question.....

"Who would inherit from you if you did not make a Will?"

When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.

People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "distributees" or people who are "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If  it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.

When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.

I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?"  The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?

Think this never happens?

I GET THESE ALL THE TIME!!!

I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".

I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....

Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.

Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the inheritance aspect is not so different than if they do.

People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals.  Business-wise, I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.

Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation.  Not only is there is no easy answer, but every situation is unique.

I will say this.....if the person has talked about it, and you think they WANT to do it, HELP THEM get it done. But, as we say in poker, don't overplay your hand.

Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should make a Will doesn't.

WHY Don't They Make a Will???

WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, resulting in  these same distant relatives inheriting  their money?

WHY…..don’t people who have “nobody to leave my money to” make bequests to charity?

WHY…..do some people have such a pathological abhorrence to paying attorneys fees, that they accept heavy financial consequences when an ounce of prevention would have led to a better result?

WHY…..do people hold family grudges for years and never make the first move towards resolving the issues?

I know, I ask these sarcastic “why” questions. The kind of questions we could all probably answer, but what would it accomplish?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”. When there is no will, and a person dies, the laws of intestacy apply. All States have such laws, essentially a logical order of priority for how the closest relatives inherit. In New York, it goes roughly like this:

- if a spouse and no children, all to the spouse
- if children and no spouse, all to the children
- if spouse and children, first $50,000 to the spouse, then 50/50 spouse/children
- if no spouse or children, all to the parent(s)
- if no parents, all to siblings (or children of predeceased siblings)
- if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins.

The above is a rough sketch, and there are rules to cover EVERY situation you could think of, and they ALL come up. It is almost impossible for there not to be at least SOME cousins. It is actually fairly common to have an older person who never married or had children, whose parents are long gone, and who either had no siblings, or outlived them all. If a person like this does not make a will, their cousins inherit!!!  This is a special situation called a "kinship matter".  In law school the professors called such inheritors “laughing heirs”. Everyone laughs about this in law school, and probably thinks it some obscure situation that never happens in real life.

Experience teaches otherwise…..

Wills With a Kicker

Sometimes family members feud.

Sometimes its irreparable (in the eyes of the participants.....I would always beg to differ, but that's another story).

Sometimes thoughts of mortality and money will lead a person to take action.

So they make a will....with one main purpose.....to make sure that "X" doesn't get anything. Sometimes there are related purposes, to make sure that "X" gets the message, or knows what he missed out on, but the theme is the same......."X" gets nothing.

I've done a lot of wills like this. In these situations, one thing you don't want is a will contest in the future. Sometimes the main problem the will-maker has with "X" is "he's the kind of person who would contest a will". The solution to this is something we learned in law school, which students think could never actually occur, but in practice is does.  It's called an "in terrorem clause". Sounds pretty cool.....here's how it works. You leave "X" enough of a bequest to make it interesting, and add a clause that says, in essence, "If after my death "X " takes ANY steps to contest this will, he will get ZERO". 

People who are so inclined seem to love this suggestion, but some real thought has to go into it. To make it effective, you actually have to leave "X" something in the Will. Clients in this situation will invariably say "So leave him $10".   However, this is not the way to do it, because "X" would have nothing to lose.  The preferred approach is to leave "X" a bequest of say, $15,000 or $25,000, or $50,000, in a million dollar estate, and let him deal with it.

Sometimes people don't want to do an in terrorem clause, but they do want to leave "X" nothing, and they want to minimize "X"'s chances in a will contest. One thing I always do, if someone is being left out, is specifically refer to them. It can be as simple as "I intentionally make no provision in this Will for X, and this is not due to an oversight".  Some people go further and say something more....."I leave X zero because he .....whatever." Another one I have had, more than once, is "I leave nothing to X, for reasons which are well known to him." I didn't like it, but the clients wanted it and I did it.  I always wondered if X really knew the reasons.

If there are any potential issues regarding the will-makers competency, steps must also be taken to ensure the Will will stand. This would include using the best witnesses possible, keeping the language of the will as simple as possible, keeping detailed notes, and making sure you can document that you (attorney/draftsman) met with the will-maker ALONE.  I have been examined by the attorney's for potential Will contestants, who were not happy to see the steps I took to prevent them from effectively contesting a Will I prepared.  

There are legal provisions for video-taping a Will, but I have never done it. I'm sure it is done, but I suspect not that often, and I can see many reasons not to.  

Why all the fuss about possible will contests? Consider this.....an attorney can take a will contest on a contingency fee. There are often high stakes, where the will contestants and the will beneficiaries shares will vary by hundreds of thousands of dollars based on the outcome.  When Will contest cases first appear in Court, the first thing the Judge will usually say is...."any way to work this out?"  Sometimes they can be settled, sometimes not.  Like many other things in the law, better preparation leads to better ultimate results.

Who Should Really Make a Will?

Who Should Really Make a Will?
The answer to this question starts with a question.....

"Who would inherit from you if you did not make a Will?"

When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.

People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.

When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.

I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?" The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?

Think this never happens?

I GET THESE ALL THE TIME!!!

I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".

I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....

Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.

Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the results if they don't are not so different then if they do.

People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.

Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.

I will say this.....if the person has talked about it, and you think they WANT to do it, help them get it done. But, as we say in poker, don't overplay your hand.

Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should have made a will doesn't.

Next post - something not death related!!
Posted by nylaw2law 0 comments Links to this post
Labels: lawyering, Who Should Really Make a Will?, Wills

Wills and the Dysfunctional Family

Sometimes family members feud.
Sometimes its irreparable (in the eyes of the participants.....I would always beg to differ, but that's another story).
Sometimes thoughts of mortality and money will lead a person to take action.

So they make a will....with one main purpose.....to make sure that " X " doesn't get anything. Sometimes there are related purposes, to make sure that " X " gets the message, or knows what he missed out on, but the theme is often the same......." X " gets nothing.

I've done a lot of wills like this. In these situations, one thing you don't want is a will contest in the future. Sometimes the main problem the will-maker has with " X " is "he's the kind of person who would contest a will". The solution to this is something we learned in law school, which students think would never come up, but in practice is does, it's called an "in terrorem clause". Sounds pretty cool.....here's how it works. You leave " X " enough of a bequest to make it interesting, and add a clause that says effectively "If after my death ' X ' takes ANY steps to contest this will, he will get ZERO". People who are so inclined seem to love this suggestion, but some real thought has to go into it. To make it effective, you actually have to leave " X " something in the Will. Clients in this situation will invariably say "So leave him $10"....but this is not the way to do it, because " X " would have nothing to lose. A better approach would be to leave " X " a bequest of say, $15,000 or $25,000, in a million dollar estate, and let him deal with it.

Sometimes people don't want to do an in terrorem clause, but they do want to leave " X " nothing, and they want to minimize " X "'s chances in a will contest. One thing I always do, if someone is being left out, is specifically refer to them. It can be as simple as "I intentionally make no provision in this Will for X, and this is not due to an oversight". Some people go further and say something more....."I leave X zero because he .....whatever." Another one I have had, more than once, is "I leave nothing to X, for reasons which are well known to him." I didn't like it, but the clients wanted it and I did it. I always wondered if X really knew the reasons.

If there are any potential issues regarding the will-makers competancy, steps must also be taken to ensure the Will will stand. This would include using the best witnesses possible, keeping the language of the will as simple as possible, keeping detailed notes, and making sure you can document that you (attorney/draftsman) met with the will-maker ALONE.

There are legal provisions for video-taping a Will, but I have never done it. It surely is done, but I suspect not that often, and I can see many reasons not to.

Why all the fuss about possible will contests? Consider this.....an attorney can take a will contest on a contingency fee. There are often high stakes, where the will beneficiaries may get nothing (or much less) if the Will gets tossed. When Will contest cases first appear in Court, the first thing the Judge will usually say is...."any way to work this out?"......and eventually, there usually is.

Filing a Will for Safekeeping

Questions sometimes arise about where to keep a Will, and who to tell about a Will. In a perfect world, where families are close and people communicate openly, this would not be an issue. The person who makes a will should discuss it with his trusted family members and tell them where the will is, confident in the knowlege that when the time comes, the will will be found and its terms carried out. There are times when it's not that way, and even times when clients want and need to resort to deception and skullduggery to make their will, but keep it safe and a secret until they pass.

I always look at whether anyone with access to the will would benefit from its disappearance. I had a client recently whose closest living relative is a nephew. He likes the nephew well enough, but they are not close. He has the nephew in the will for about $50,000, has some other cash bequests, and leaves the rest (about $400,000) to his best friend, and if his best friend dies first, to his friend's family. I know him long enough and well enough to know it's legit, but he is very concerned that his nephew would be called to his residence if he died, and the will would be gone. He also is uncomfortable keeping it in a safe deposit box, and uncomfortable about leaving it with me. I suggested that we file it for safekeeping with Surrogates Court, while he is still living. Many people, and many lawyers, don't know you can do this, but it can be very useful. It costs $40 to file. Whenever anyone files an Administration proceeding (claiming there is no will), the Clerk ALWAYS checks for wills on file. I have filed wills for safekeeping about 10 times in the last 25 years. I don't know if it ever stopped skullduggery, but whenever I do it, the clients always appreciate the advice.