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Bar News - March 19, 2014

Elder, Estate Planning & Probate Law: Can’t Find It? Tips for Preventing and Locating Lost Documents


One of the most frustrating complications of wills, trust, and estates work is the situation in which a client loses his or her original documents. There are obvious potential legal implications associated with the loss of originals, so it is advisable to attempt to minimize the risk of loss, and to rectify the loss as quickly as possible when it does occur. The following is a list of practitioner’s tips that can assist in avoiding and mitigating these events.
• Keep original documents in a fireproof safe in your office.
• Maintain an electronic copy and back-up your system.
• Ensure that your electronic copy system allows accurate and easy identification of the most recent documents and does not include unsigned draft documents that were rejected by the client or never put into effect. If these works contain provisions that you believe the client may desire at some time in the future, create a separate clearly marked folder for these drafts.
• If a client is going elsewhere for whatever reason, avoid mailing originals if possible.
• If a client picks up originals, or in the event you must mail the originals to a client, keep a copy and keep a receipt and acknowledgment signed by the client. This acknowledgment should specify the documents by date and title.
• Consider providing the electronic copy of the documents on a portable disc drive or disk.
• If the client loses his or her originals before getting to the new attorney, the client should execute new documents, or at least an affirmation of the former document (copied and attached to the affirmation) either at the former attorney’s or new attorney’s office. If an electronic copy has been maintained, duplicate original documents should be able to be produced and executed almost instantaneously and at no or minimal cost to the client. If a prior attorney has not maintained an electronic copy, or it is no longer available, reaffirmation may be an alternative to creating a new substitute equivalent plan.
• If it has been some time since the client first prepared the plan represented by the missing originals and changes need to be made, it may be more efficient for the client, who now has to re-execute documents, to work with you to create the new plan, but careful consideration should be paid to whether the client is better risking a potential presumption that the prior plan was revoked, or whether in the meanwhile, the prior plan should at least be reaffirmed.
• Documentation of communications with the client will help confirm the client’s intentions in wanting to treat the lost originals as lost, or a desire to treat the loss as a revocation.
• Maintain periodic contact with your estate planning clients to keep apprised of their life changes and encourage them to review their plans regularly. Because you keep the originals, they will not be able to effectively revoke the documents by destroying the copies, and should be accordingly advised of the importance of staying in contact with you.
• When documents are lost, and the client (or the client’s family after a death) remembers the name of the preparing attorney, acquisition of a copy or the originals is often accomplished by contacting the preparing attorney’s office.
• When the client doesn’t remember the name, firm, or location of the preparing attorney, the transmittal letters, folders, and other indicia of the preparer may have also been lost with the originals or client copies (though providing clients with frequent correspondence bearing your letterhead, and providing them with folders to assist them in organizing important documents helps minimize risk of irretrievable loss).
• When the documents can’t be found, it is important to attempt to track down copies and originals.
• Search the registry of deeds. The first deed(s) into a trust, for example, likely were prepared by the estate planning preparing attorney and can lead to a name or address. Any later transfers will hopefully be documented by the transferring firm (though this may be difficult to track for closed firms).
• Another way originals may be found is by communicating with the client’s financial institutions or financial advisors. These entities and individuals may have been provided with at least a copy of a declaration or certificate of trust. It is not guaranteed that the preparing attorney’s information would have also been conveyed, such as in the very usual instance of the client leading up the communications with his or her financial advisors and entities, but a location for the signing, witness and notary information, and similar information on the documents can be a helpful lead. But, at least some of the financial institutions with which a client will deal will not retain copies.
• Ask the bar. Through inquiries on the NH Bar Association email listservs, a lawyer searching for lost documents can reach a large pool of fellow attorneys who may be the holder of originals, or have some information about who may be holding the originals.

Shenanne Tucker practices with Bouchard, Kleinman & Wright, P.A. in Manchester and Brentwood, New Hampshire. She has practiced estate planning, probate, elder law, commercial law, and litigation in Maine and New Hampshire since 2002.

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