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Friday, November 26, 2010

Does a lawyer charge to release an original Will?

When an executor is going to apply to the court to probate a Will, he or she must have the original Will of the deceased. People are encouraged to store their Wills in logical places so that the Wills can be found (I've been involved in estates where original Wills have been found stuffed inside the headboard of a bed, rolled up in an empty shaving cream can, or placed under the ice cube tray in the freezer. Gotta love people's quirks!). One of the popular places to keep an original Will is at the office of the lawyer who drew up the Will.

Assuming that the testator of the Will has died and his executor has tracked the Will to the lawyer's office, the executor has the right to request that the original Will be handed over to him. The executor will have to show his identification to prove that he really is the person named in the Will, and he'll have to sign a receipt for the Will as well.

I've been asked whether in this situation, the lawyer storing the Will will charge a fee to the executor.

If at the time the Will is handed over, the lawyer sits down with the executor and reviews the Will, and gives the executor some advice on how to handle the estate, of course he or she will likely charge for that. While some firms offer a free half-hour consultation on certain types of files, that practice is by no means universal and no executor should assume that he or she is going to get free legal advice.

Advice aside, will there be a fee? There is no standard practice in place for lawyers everywhere. I've worked for three of the city's larger law firms and one trust company, and none of them charged a fee for this. If the lawyer or her staff tell the executor that there is a fee, the executor should ask exactly what the fee is for. Documents prepared for clients, including Wills, belong to the client. In the case of an executor who steps into the shoes of a deceased client, the Will must be turned over to the executor. Therefore there shouldn't be a fee simply for giving the document to its rightful owner.

Perhaps a fee would be in place for storage of the Will in the law firm's premises. I find it unlikely that a law firm charging for storage would allow years to go by without sending a bill to the client and plan to collect its fee only when the client has died. That just doesn't seem like much of a business model. So any fee for storage should be small.

Paying even a small a fee at this stage of an estate can be problematic. Obviously if the executor is only at the point of getting possession of the Will, he or she doesn't yet have access to any estate assets to use to pay any bills. If the executor is unwilling or unable to pay the charge himself, other arrangements might have to be made. I don't think that would be much of a problem. The executor could, for example, agree to include any outstanding fee on the inventory of the estate, and pay it at the same time other estate debts are paid. Or, if the executor has a lawyer, the lawyer could request the Will and undertake to include the fee on the estate inventory.


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