Cautionary Tales - Attorney Retired or Died. Now What? - Episode 238

Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle! Today’s episode of Legal Tea is the “cautionary tales” topic. And on these “cautionary tales” episodes of Legal Tea, we normally talk about real-life cases with real-life clients that are things me or my office have worked on -or they are things that I think are generally good things to be aware of, that way you don’t turn into a cautionary tale on my Legal Tea podcast one day! So… today’s episode tackles something I encounter fairly often in my practice – and honestly, it causes more headaches than you might imagine. We are diving into what actually happens to your estate planning documents when your lawyer retires, passes away, or just... disappears from practice altogether. What really got me thinking about this topic is that I cannot tell you how many times we sit down with someone who opens with, "So, I had my Will done a long time ago with this attorney, and honestly? I have no idea if they're even alive or still practicing." SO, let’s dive in…

First things first – and this is critical, folks – you need to figure out if you actually have your original estate planning documents. And when I say "original," I mean the physical papers with actual ink signatures on them. Not photocopies. Not scans on your computer. The real deal. I can hear it now … "But Jenny, why does that matter?" Great question! There are specific situations – and trust me, they always seem to pop up at the worst possible moment – where you absolutely must have those original documents. The last thing you want is to be scrambling around trying to locate them during a crisis.

This relates to the topic on this episode because I know plenty of attorneys / law firms who hold onto clients' original documents in their offices. Personally, I'm not a fan of this practice. At my firm, we flip that script entirely – clients walk out with their originals, and we keep copies in our files. Honestly, there are pros/cons about both – and that’s maybe a podcast episode for another day, but … here's the nightmare scenario I see play out: Someone calls me saying, "Jenny, my old attorney either died or retired. I've been trying to reach their office to get my original documents, but the phone number's disconnected. The office is gone. Now what do I do?!"

And this is where I have to burst a bubble that a lot of people have – most states don't maintain some master vault with everyone's estate plans stored away. Like, people assume these documents get filed with the courthouse or something, but most counties and states, you do not have to! If I walked into my local courthouse and tried to drop off Mr. and Mrs. Smith's estate documents, they'd look at me like I had totally lost my mind.

So knowing all that, if you discover your previous attorney has retired or passed away AND they were holding your original documents, you need to get to movin’. I'm talking ASAP, not "I'll get around to it eventually." Why the urgency? Well, here's a fun fact that might surprise you: Attorneys are typically allowed to destroy client files after a certain number of years – often it's around three to seven years depending on the state and the type of file. So if it has been a while since you have been in touch, there is a real possibility those documents are long gone. This is especially true if it was a solo practitioner who closed up shop entirely. Now, if we're talking about a larger firm, the situation might be different. Typically, when an attorney at a bigger firm retires or passes away, another attorney will be assigned to take over their client matters. In those cases, your files probably haven't been destroyed – but that does not mean that you are obligated to stick with that firm.

In fact … Maybe it’s the perfect time to re-evaluate that relationship and IF you want to stay with that firm. You are NOT married to your original law firm. Just because you started there does not mean you have to stay there. This is your choice, your documents, your estate plan. If your attorney retires and their firm assigns you to someone new, treat that as a golden opportunity. Go meet with that new attorney if you want – but also feel free to shop around. Get your original documents from them and schedule consultations with other attorneys. Find someone who is the right fit for you NOW, not just someone who inherited you as a client. Your relationship with your estate planning attorney should not and never feel like a one-and-done transaction. It should be an actual relationship built on trust and communication. Dare I say … you should actually like them too.

Honestly, this whole "disappearing attorney" problem (well, it’s not disappearing – maybe they decided to retired, but also … maybe they DID pass away or they are not doing well) … anyway, it has become such a prevalent issue that many states have started really pushing for – and in some cases requiring – attorneys to designate what's called a "surrogate." Essentially, it's a backup plan: "If something happens to me, here's who should be contacted, here's where my client files should go," and so forth. It's becoming more and more common across the country as states recognize this problem and try to address it proactively. Every so often – not frequently, but occasionally – a client will turn the tables on us and ask, "So, what happens to MY documents if something happens to YOU?" And you know what? We absolutely love that question! It shows incredible forward-thinking. After all, we're sitting there planning for their potential incapacity or death, so why shouldn't they ask about mine? When this comes up, I explain the surrogate system (yes, I have one designated) and also mention that since I'm a business owner, I have my own comprehensive estate plan specifically addressing what happens to the law firm itself.

Here's an ironic truth: Attorneys are notoriously terrible at doing their own estate planning. I have heard about multiple attorneys in my area who passed away without even having a Will. Yep, they spent their careers helping others get their estate plans in order, and then they died without one. Wild, right? So here's my advice: Don't be shy about asking your estate planning attorney about their own plan. Do they have a surrogate? Have they done their own estate planning? What’s the firm’s succession plan? This isn't nosy – it's practical. You're essentially asking, "Hey, do you have your ducks in a row so that if something happens to you, I'm taken care of?" That's completely reasonable!

This actually reminds me of a recent realization I had that's directly relevant to all of this. A little background: My husband and I purchased our law firm from its founder several years ago now. I had even been working there for several years prior to that. When we took over ownership, we were very intentional about communicating the transition to existing clients, particularly those who had worked exclusively with the founder. And look, most people were fantastic about it. But there were a few – who were a bit upset. Not at us personally, but at the change itself. They had formed such a strong attachment to the founder that the transition felt like almost like a betrayal to them. So on this whole topic, I have to tell you about one of those FEW clients who weren’t super thrilled…

So, the husband, let's call him David, said something that really stuck with me. He said, "I have to be honest, when the founder retired, I was kind of frustrated. It was nothing against you two – it was just that SHE was our attorney. You know?" He said it kindly, not like in any kind of snarky way or anything. But I responded pretty directly (which is just how I roll). I said, "David, can I push back on that a little? When you chose to work with someone at that stage of their career and roughly about your same age, what exactly did you expect? Was she supposed to just... never retire?" This idea that her choosing to retire was somehow shocking or wrong genuinely didn't sit well with me. She retired in her 60s – a perfectly normal retirement age. And actually, since I'm already here on my soapbox, I'll go ahead and say it: I think way too many lawyers hang on far too long. I recently came across a story about a 90-something-year-old attorney still practicing, and while everyone seemed to find it charming, my reaction was more like... yeah, no thanks (for several reasons).

Let me wrap this up with some practical advice based on everything we've covered today. When you're choosing an estate planning attorney, it might be worth considering whether you want to work with a firm that has multiple attorneys versus a solo practitioner. I know plenty of excellent solo attorneys who provide outstanding service to their clients, so this is NOT about quality of work. Rather, it is about continuity. With a solo practice, if that attorney retires, dies, or becomes unable to practice, you may be left scrambling to figure out where your documents are and who can help you going forward. There may not be an automatic backup.

With a multi-attorney firm, you at least have some built-in protection – if your attorney leaves, there is typically someone else who can access your file and continue working with you. Now, if you love your solo practitioner and would not dream of working with anyone else, that is fine and dandy. Just make sure you are protecting yourself. Perhaps you advocate for keeping your original documents (if they are the type of firm that holds on to originals). Also, be sure to ask about their succession plan – who takes over their practice if something happens? And lastly, remember that if the worst does happen and your attorney is gone, you're not stuck. You can absolutely find a new attorney to work with. Sometimes that new attorney can work with your existing documents and maybe just update a few things. Other times, they might recommend doing a complete rewrite. Either way, you have options. The key is being proactive now so if something happens, you are not caught off guard later.

Alrighty, let’s shift to a sneak peak of next week, which we’re circling back to the “current trends” topic where we talk about things that are going on currently that impact my estate and elder law world – or maybe, things that I have stumbled upon on the news or social media that is relevant to this podcast. Next week is going to be about something I’m noticing as a trend … that more and more families are wanting an unbiased / third party professional to serve as their Executor or Trustee – and with more and more banks declining to serve or having a pretty high minimum for them to even agree to serve, I see it from a million miles away – this is going to be a huge issue because a lot of attorneys and professionals do not want to serve in those kinds of roles. So yeah. That’s next time. I’ll talk to you then, Legal Tea Listeners, be well and take care!

Sources:

None.