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File retention: wills and probate

6 October 2011

Note that the SRA Handbook (version 21) was replaced by the SRA Standards and Regulations on, and with effect from, 25 November 2019.

This practice note will shortly be updated to reflect the introduction of the SRA Standards and Regulations. Until then, you are advised to check any references in the practice note to the current Handbook against the new Standards and Regulations to ensure that you are aware of the up-to-date position on all issues to which the practice note refers.

  • It is essential that firms have a clear policy on the storage and destruction of the original files and documents.
  • With increasing longevity and diversity in relationships there are more disputes arising after death, as well as claims in respect of lifetime gifts.
  • Challenges to wills (especially if there are unequal gifts to children) or previous lifetime gifts or disposals of property at an undervalue often arise many years after the original advice was given.
  • You should keep records with the will which explain that appropriate advice was given to the client at the time of making the will. Without adequate records you or your firm may not be able to defend its position.
  • It is also essential to know who owns the various original documents and papers, especially after the death of your client.

Legal status

This practice note is the Law Society's view of good practice in this area. It is not legal advice.

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

Professional conduct

The following sections of the SRA Code are relevant to this issue:

  • Chapter 1 on Client care
  • Chapter 4 on Confidentiality and disclosure

SRA Principles

There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.

Terminology

Must - A specific requirement in the Solicitors' Code of Conduct or legislation. You must comply, unless there are specific exemptions or defences provided for in the code of conduct or relevant legislation.

Should - Good practice for most situations. If you deviate from this, you must be able to justify why this is appropriate, either for your firm, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual firm, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.

The Law Society also provides a full glossary of other terms used throughout this practice note

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