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  • Writer's pictureJenny Rozelle, Host of Legal Tea

Cautionary Tales - Your Estate Attorney Retired or Died - Now What? - Episode 84

Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle! Today’s episode of Legal Tea is a cautionary tale, where we talk about real-life cases with real-life clients with real facts – they’re things me or my office have worked on. For today’s episode, we’re going to be talking more about a general topic/question I get quite frequently – and I actually see the consequences/repercussions often, too – and the topic we’re going to be talking about is “what happens” to your estate plan if you attorney passes away, retires, or stops practicing. To be honest, this is a really, really common thing I hear from people and clients. They’ll say, “Well I did my estate plan 30 years ago with an attorney … heck, I don’t think he/she is even practicing anymore!” So, because I hear this oh so very often, I figured … let’s talk about it on Legal Tea! And here we are…

On this topic, there are a few things I want to talk about that are all SUPER important and good to know if this has happened to you or if it does end up happening to you. When you learn that your prior attorney has either passed away or retired from the practice of law, one of the first things you really should do is look to see if you have the original documents. I’m talking about the version that has the INK on the paper. Now, a copy. There are some instances in life that the original version of these documents will be needed, and you don’t want to learn AT THAT POINT that you don’t have the originals. Now, I guess this is my podcast and I can, sort of, insert my professional opinion sometimes (I do try to keep opinions at bay), but I’m not a big fan of lawyers/law firms keeping the originals versions. This is not the forum to detail “why” they do that, but nonetheless, a lot of attorneys/firms DO keep originals at their office. At my office, we give the original versions to the clients and keep COPIES of the documents in the client’s file.

I have had conversations and meetings with clients that tell me, “Oh so-and-so retired or died … I tried to call the last number I had for so-and-so to get my originals and there’s no one there. No one answers. Or, it’s a dead line like it’s out of service. Now what, Jenny?!” Well, contrary to what a lot of people believe, the State of Indiana does not have a magical database which holds everyone’s estate plans. That doesn’t exist. Many people think these documents get sent to the Court or something … and they don’t. If I tried to walk into the Courthouse and say, “Hey, Mr. and Mrs. Brown did their estate plan and I’m here to drop them off!” They’d be like, “Uh … what?” So yeah, that’s not a thing.

So, if you happen to learn that your old/prior attorney passed away or retired AND they have your originals, try to get a hold of their office as soon as possible before the documents get moved (which I’ll get to in a second) or even … destroyed. Crazy enough, in Indiana, attorneys are allowed to destroy files, I think, after 3 years. So, chances are … if it’s been longer, it would get destroyed. I suppose the latter would only happen if the office was closing up shop – but say, for example, a new attorney is, sort of, “assigned” to your case. If that happens, then that’s something else to ask –it’s probably less likely that the file/your documents would get destroyed. I could see this happening with mid-size to larger firms, but say it’s a solo attorney … yeah, those files may very well get destroyed. So act fast, friends!

But, say that it is a mid-size or larger firm and another attorney is able/willing to help, perhaps you should take that as an opportunity to meet with an attorney to make sure you still want to work with that firm – or—maybe you go get your original documents and find someone else to work with. And I think this is an important point to hear – a lot think that you HAVE to go back there or stay there, so hear me loud and clear, that’s not true. YOU get to pick your attorney – so if you want to switch up firms, I’d recommend getting your originals and bringing those to another attorney you want to work with. A perfect opportunity to have a fresh set of eyes take a peak to make sure all looks hunky dory! On that note, there are some law firms that, like mine, offer a free consultation for the first meeting – which is a great way to meet attorneys and find someone you really enjoy working with. Kind of the whole “try before you buy” approach. After all, the relationship with your estate planning attorney should really be a relationship – not a single transaction.

So, on this whole topic of attorneys passing/retiring … and sort of sometimes leaving clients high and dry … Here in Indiana, this had become such a big issue that our State really started advocating for attorneys to designate a “surrogate” which is a “if something happens to me, this is who people should contact, where files should go, etc.” Heck, they may have started requiring us to do that, actually. I can’t remember if it’s optional or required, but nonetheless, the State has started to try to solve this issue. I’m sure other states have similar things on this note, too, to list a surrogate.

I wanted to bring this topic up because occasionally (definitely NOT often), I have clients ask me, “So Jenny, what happens to this firm … to my file … if something happens to you?” I LOVE when people ask me this questions because it’s so forward-thinking, right? Heck, we’re talking about what happens if something happens to them … so they’re just turning the table and asking me, the professional. I love it. Anyway, that’s often when I explain the surrogate rule (and yes, I have a surrogate listed) and that because I own the business/law firm, too, that I have my own estate plan to deal with all-things-business. For whatever reason, attorneys tend to be BAD at estate planning themselves … I have known attorneys that have passed and next thing you know, I hear, dare I say, gossip that they “didn’t have a Will” and going through probate. Probate is public, so it’s easily verifiable. So, I’d encourage you to ask your estate attorney about their succession plan – do they have a surrogate? Do they have THEIR estate plan done? Not from a nosy place, but from a ”Hey do you have your crap together in case something happens to YOU, attorney, to take care of ME, client?” I think that’s a totally fair question to ask!

Alrighty, on to my final topic for this episode, I had a light bulb moment somewhat recently and it’s directly pertinent to this episode. So, I have to give a super brief history about my office … just to give some context. So, while I’ve been with the firm for 11 years, I haven’t owned the firm that long – actually, my husband and I bought the firm from the founder like 4 years ago. So, when we purchased the firm, we had a very methodical and intentional message to existing/past clients, especially those that primarily worked with the founder. After all, the founder had been in business for about 20 years. Even though I’d been there for a lot of the time, there were still some (actually, VERY few) clients that were a little upset about the business transition. Not upset at my husband and I – they were actually frustrated with the change. They were essentially latched on to the founder. That’s fair – People are entitled to their opinions. But my light bulb moment hit me recently when my husband and I were talking to a client recently that had started the relationship with the office … with the founder. He “knew” me (since I’d been there forever) – but really primarily worked with the founder.

Funny enough, this client and my husband/I have actually turned into friends. I’m not kidding. We go to dinner with them, for example. So, one day, we were at dinner with them and the husband said, “You know – I have to admit that I was pretty frustrated when the founder retired. It wasn’t against you guys – it was just … that … THAT was our attorney … not you.” He said it totally respectfully and not like rudely … and actually said it kind of funny since now we have dinner with them! (And I don’t get together with clients … I think I can count 3 clients I do that with!) Anyway, I said, “Well [let’s call him John] … well John, I have to push back a little bit and say that what did you think was going to happen when you chose to work with someone that age? Was the founder …. Not allowed to retire?” I said that because while the founder did retire a little early, it wasn’t THAT early.

I think my husband was a little surprised by what I said (he often is haha!)– but, I am not one to really beat around the push, first of all, and secondly, I felt comfortable with this client sharing my feelings on that. I whole-heartedly believe what I said, too, because the founder and I still today are friends – and I think this notion that she retired (and GASP! She retired?!) is blasphemy, honestly. I actually think lawyers tend to stay in the field TOO long – like, I recently say an article or tweet or something about some lawyer somewhere that was still practicing at 90-something. Like that may be cute and all, but no thanks. Hard pass on that for me.

So, the light bulb moment I had recently (and it has to do with this whole topic) is that … age is really a number. A number only. And yes, I know – this is not earth-shattering stuff here, but I say this for two reason. First, if you choose to work with an estate attorney and they’re nearly the same age as you (especially if you yourself are retired), don’t exactly be surprised or mad if said attorney ends up retiring too. And be mindful, if they do, of everything I’ve shared in this episode. Same concept if said attorney passes, right? Secondly, age does not equate to experience. Let me say that again … age does not equate to experience.

I was recently talked to another lawyer in my area that is in her mid-50s. Nearly her entire career (20+ years), she has done litigation. Now, she’s wanting to slow down and do more transactional work like estate planning. So, she had wanted to “pick my brain” about something things. Like I said, she was in her mid-50s and had been doing estate planning for around one year. A single year. I’ll compare that to myself – I’m in my mid-30s, specifically I’m 35 if you really want to know, and I’ve ONLY been in estate/elder law for 11 years. So, take this to heart and remember that if someone has been practicing law for a good long time, that doesn’t automatically mean that they’re your best fit – and conversely, if someone looks young, don’t judge a book by its cover. The younger one just may have more direct experience than the other…and in this example, I do. (By the way, I’m NOT saying someone with one year experience is “bad” – my message is … age is just a number and don’t judge a book by its cover. Elementary school lessons, here!)

Alrighty … let’s wrap this episode up and shift to a sneak peak of next week. We are back to the current events/current trends topic – where we talk about something I’ve seen or run across, maybe on the news or social media, that I think would be interesting on here. During next week’s episode, we are going to be talking about a topic I remember briefly learning about in law school, which is assisted suicide. It’s a rather controversial subject, for sure, and we’re going to talk about it next Tuesday, Legal Tea Listeners. So until then, take care and be well!


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