July 2012Volume 100Number 7Page 346

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A well-kept secret: the Illinois deposit of wills

Tired of – and nervous about – storing clients’ original wills on your premises? Consider the Illinois Secretary of State’s deposit of wills.

A recent flurry of posts on an ISBA discussion group revealed what might be one of the best-kept secrets in Illinois: Where there’s a will, there’s a way to store it without keeping it in your office and assuming the attendant risk and responsibility.

Pursuant to statute, the Illinois Secretary of State’s office maintains a “deposit of wills,” in which any Illinois attorney can file a will into archival storage for a fee of $15.

The state’s official will depository has been in existence since 2010, but a senior legal advisor in the secretary of state’s office said it has been slow going in trying to spread the word to the estate-planning attorneys.

“It’s been around a couple of years but it’s relatively new. I know it has not been publicized very much, but it is up and running,” said Nathan Maddox, who is also a legislative liaison for Jesse White’s office.

Maddox said it used to be common practice for attorneys to keep the original copies of their clients’ wills and other estate-planning documents, and that banks also frequently stored original wills for which they were the trustee.

A few years ago, ISBA staff and members of the Trusts and Estates Section Council approached Maddox to discuss potential legislation to establish a state-run alternative to the customary attorney and bank archival process.

“The will repository is designed to address the situation where you have an attorney who’s retiring, or perhaps who passed away, and now you have someone coming into his office to search through a stack of wills” for the one he’s looking for, Maddox said.

According to Maddox, the idea was initially pitched to the secretary of state’s office by Jim Covington, the ISBA’s Director of Legislative Affairs, who based his model on a system in another state.

“We told him ‘no,’” Maddox said. “We told him the [state] treasurer’s office has an unclaimed property office” that would be a better option for a will repository.

But when the treasurer’s office said they could not feasibly handle a deposit of wills, Maddox worked with the ISBA and legislators on behalf of the secretary of state’s office to establish the current system.

How to file: in Springfield and in person

Currently, wills are only accepted for deposit in the secretary of state’s Index Department in its Springfield office, and they must be deposited in person by the attorney or attorney’s agent. The wills are immediately sealed in an envelope that must contain substantial identifying information including the testator’s birth date, alternate names, descriptions of the estate-planning documents enclosed, and other information as set forth in the Illinois Secretary of State Act, 15 ILCS 305/5.15.

The statute presumes that prior to filing a will, the attorney has performed a good-faith search for the testator to no avail.

“We hold [the wills] for 100 years,” Maddox said. “We do not want to accept responsibility for transporting the wills around the state. Therefore, they must be filed in person in Springfield, and they literally go straight from that desk down to a vault in our basement.” The Index Department is at 111 East Monroe. The department’s phone number is (217)782-7017.

The wills are indexed, catalogued, and entered into a searchable database, Maddox said.

Peace of mind

Joliet-based estate-planning attorney Myles L. Jacobs said the state’s repository is “necessary” for lawyers with basements full of file cabinets packed with clients’ wills. For lawyers who cannot locate those clients who may have created, signed, and filed their wills decades ago, this new system provides an ethical and cost-effective solution for long-term storage and for peace of mind that those important papers are somewhere safe.

“Attorneys used to be paid on their probate work based on the value of the estate, so they were reluctant to let a will out of their office because it was potentially lost business,” Jacobs said. “What has happened now is some of these firms, like my firm, have wills going back way over 50 years ago…and now we can’t find a lot of those old clients.”

This new system answers a lot of questions that trouble most hard-working estate planners, Jacobs said. Now attorneys know what to do with their clients’ wills when they’re retiring from the practice or moving to a different town, particularly in consideration of the laws prohibiting destruction of wills.

As one of the few attorneys already using the system, Jacobs applauded his friends and colleagues who took the time to develop the procedures, draft the legislation and get the program up and running.

“They got this set up so there would be a place, when all else fails, where you can file the will and it will then be totally out of your hands,” Jacobs said. “No more relics in your safe-deposit box.”

Adam W. Lasker <Law_Reporter@yahoo.com> is a Chicago-based lawyer and writer.

Member Comments (3)

I had discussed the possibility of a county-wide will repository with a number of Clerks of the Circuit Courts I know; it would have been modeled after that now in effect in other states. When it was brought up to the clerk's association, they rejected the idea. There was also a great bar journal article a while ago on this subject. Were this repository on a county-wide basis instead of state wide, I think that attorneys would utilize this more often.

After waiting 3 months for the Index Department to renew my Notary I would be hesitant in using this service. When I called them to see what the holdup was they said they were behind and only opening mail received two months ago. They stored the unopened mail in a box until they could get to it.

I would imagine that if a client comes into your office and requests that you handle the estate of a deceased It would be proper to check this depository to see if contains a will of the deceased.

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