Crafting a comprehensive estate plan with the help of a qualified attorney is one of the best things you can do to protect yourself and your loved ones. You and your attorney should revisit that plan periodically to ensure it stays up to date.
But what happens if the attorney you hired to draft your estate plan dies, retires, or disappears? Unfortunately, estate planning attorneys are like anyone else: They get old, they retire to spend time with their family, and, yes, they even die unexpectedly due to an accident or illness.
Retirement is usually a long-planned event, so it rarely surprises estate planning clients or the attorneys. An unexpected death or disability, on the other hand, is by definition unforeseen and not prepared for.
An attorney becoming disabled or dying happens more than people might think. Therefore, it’s good to know what to do if you end up in this situation so that you aren’t left in the lurch with a ton of unanswered questions about the status of your estate plans, the location of original documents, and who is taking over your case.
To help you prepare for such a circumstance, let’s look at what to expect and what you can do if your estate planning attorney suddenly dies, retires, or disappears.
What Happens When an Attorney Dies?
On the law firm’s end, a number of events are set into motion if an attorney dies or becomes disabled. Common courses of action include:
- an outside attorney may step in to help wind down the practice,
- another attorney from the same firm may take over the cases, or
- the executor of the lawyer’s estate may sell the firm to another attorney.
Pro Tip: Regardless, you are not at the mercy of fate here; by law, no one can substitute as your attorney unless you agree to the substitution. You will be sent written notice of any potential change to your attorney and given the opportunity to look for different counsel or accept the substitute attorney.
Florida Bar Rule 1-3.8: Inventory Attorneys
One potential outcome of your attorney’s death or disability is the closing down of the firm. However, there are regulations in place that prohibit a firm from simply shutting its doors and leaving clients in limbo.
As of 2006, every attorney in Florida is required to designate an “Inventory Attorney.” An inventory attorney takes possession of the files of an attorney who dies, disappears, is disbarred or suspended, or suffers involuntary leave of absence, and assists in winding up the business of the law firm.
The inventory attorney is required to notify you that your attorney is no longer capable of representing you. After you receive the required notification from the inventory attorney, you have the right to look for alternate representation, request a referral from the inventory attorney, or ask for copies of your files.
Inventory attorneys, however, are meant as stopgaps to ensure client’s rights are protected while the deceased attorney’s affairs are brought to a close, and it is unlikely that they will take over representation of the clients.
Sale of Your Attorney’s Practice
The sale of the law practice is another potential course of action when an estate planning attorney dies or is no longer capable of practicing. The Florida Bar has strict rules governing the sale of a law practice to ensure your information is kept confidential.
The sale also requires written notification to every client of the proposed sale insofar as the purchasing firm would take over as a client’s attorney. Clients have 30 days to agree to or object to the substitution of counsel. If clients do submit to the substitution of counsel, the acquiring law firm is required to abide by any existing fee agreements.
If a client does not want to have the purchasing law firm take over as their attorney, they have the right to search for a new estate planning attorney, to whom their files can be transferred.
Pro Tip: Even if another attorney at the firm is taking over in the interim, you are not required to agree to them taking over permanently. Especially in the estate and trust planning arena, people work with attorneys they know, like, and trust. You may not have a relationship with other attorneys at the firm, and you are under no obligation to work with them.
Keep Calm and Carry On
Often, estate planning attorneys store their client’s original planning documents in their offices for safe keeping. Leaving these important documents with an attorney is not bad practice, but if your attorney should die, you may have concerns about what to do and whether the documents are still valid.
First, do not worry! Your will, trusts, and other estate planning documents are still valid even if your attorney passes away. You can request the original notarized and signed copies from the inventory attorney if you wish, but you should still find a safe place to store them, such as a secured lock box or a safe deposit box.
Second, you will need to meet with your new estate planning attorney, whoever it might be, to begin building a rapport and to discuss your current estate plan. This would be an opportune time to review your estate plan to ensure it still matches your financial goals.
How Can You Avoid a Bad Situation?
The unexpected loss of your estate planning attorney may be disappointing, but it doesn’t need to be distressing. We recommend taking a few simple steps to prevent a potential death, disability, or retirement from resulting in lost documents, family conflict, or confusion.
- Maintain a Relationship with Your Attorney: Without up-to-date contact information, the inventory attorney or other parties will be unable to contact you in the event your attorney dies or becomes disabled. So be sure to stay in touch with your estate planning attorney and update them of changes to your contact information. (A great way to do this is by signing up for email newsletters!)
- Know the Location of Original Documents: Your original notarized estate planning documents are important and very difficult to replace. Allowing your attorney to hold them is fine, but so is keeping them in a safe deposit box. Whatever you do, you should know where they are and tell your loved ones their location as well to avoid confusion and delays.
- Review Your Estate Plan Periodically: We suggest that all of our clients review their estate plans periodically, especially after big life changes, to ensure they still reflect their wishes. Periodic reviews will also allow you to actively cultivate your relationship with your attorney, learn ahead of time of any planned changes to their circumstances, and seek new legal counsel if necessary.
Book a Financial Legacy Review
Having your estate planning attorney retire, die, or disappear can be aggravating. If this has happened to you, remember that you have the right to choose your new legal advisor. You are no obligated to work with a law firm that buys your attorney’s firm or with other attorneys within that firm.
We would love to help you take a more active role in your estate planning. Call us today or submit the form below to schedule your free Financial Legacy Review. We will locate and review your current estate planning documentation and make arrangements to update those documents to protect your wealth.