What Happens if Your Estate Planning Attorney Dies Before You?

So you've done the responsible thing - you've worked with an estate planning attorney to get everything in order to avoid problems if you become incapacitated, or upon your death. And then you find out that the attorney you worked with has sailed off into the sunset in one way or another…

If your estate planning attorney has retired, moved, or died, you will need to do several things to ensure that your planning is still ready to serve your needs. First, determine whether you or your estate planning attorney has your original documents. By “original” here, I mean the documents that actually have the ink you placed on the page by signing or initialing them. Original documents are sometimes kept by the estate planning attorney and sometimes kept by the client. If you do not have your original documents you need to reach out to your old attorney’s office right away and make sure that they still have them. You want to do this before they have moved the documents to storage or, even worse, destroyed them. If your old attorney’s office still has your original documents, either ask that they set them aside for you to come pick up, or ask that they deliver them to you. The only exception to this would be if you have decided to continue to use your old estate planning attorney’s law firm to continue to represent you concerning your estate.

Next, you should determine whether your old estate planning attorney has one or more other attorneys in his or her office that are taking over the departed attorney’s files. In larger firms, this is the common approach, but in smaller firms it is by no means guaranteed. If there is an attorney in the departed attorney’s office that is taking over his or her files, you will likely want to meet that attorney (or at least have a phone conversation with him or her) to determine if that is a person you feel comfortable working with. You do not have to stay with that law firm just because your documents were originated there. Remember that your relationship with your estate planning attorney has a direct impact on everything you own and everyone you love, so this is not a relationship in to which you want to have defaulted. Every client has the right to confidence and comfort in their relationship with their estate planning attorney. If you doubt those feelings with someone you never selected to work with in the first place, then it is time to start looking for other options.

Finally, if you do decide to look for a new attorney at an office other than your old attorney’s office, you should obtain your original documents from your old attorney’s office if you don’t already have them. Then make an appointment to interview a new estate planning attorney and review your estate planning documents with that new potential attorney. Some law firms, like my own, will even give you a free consultation with an estate planning attorney in this situation. This is a great way to “try before you buy” – and to be sure you are comfortable with the relationship before you invest a lot of time and money into it.

If you have any trouble getting your documents from your old attorney’s office, do not hesitate to ask your new or potential new estate planning attorney to assist you in doing so. So long as your bill is paid up at your old attorney’s office, your documents are yours and cannot be denied to you by that office.

One final thought – the departure of your old estate planning attorney is a natural opportunity to review your existing planning documents (wills, trusts, powers of attorney, advanced directives, etc.). Because you will be looking for a new attorney who will offer you a free consultation to meet with him or her for the first time, I encourage you to use that opportunity to refresh yourself with what your planning documents say and whether there are any needs for updates or a fresh approach due to changes in your family’s circumstances, changes to your desired outcomes, or changes to the law. Your new potential estate planning attorney should be excited to help you with such a review of your planning. I know doing exactly that is one of my favorite ways to meet new clients.

My law firm is currently offering free in-person, telephonic, or electronic consultations concerning creating or reviewing estate planning documents.

Robert J. Green is an Elder Law, Trust, Estate, Probate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.