By-Law 7.1: Client Contingency Planning. Estate Planning Lawyers, are you ready for the 5 A’s?

Wills and Estates lawyers know better than most that everything comes to an end, and that the best course of action is to accept and prepare. This positions you well to model good succession planning to your peers. Keep in mind, there are some special considerations estate lawyers must consider when drafting a plan.

By-Law 7.1 took effect on January 1, 2025, introducing the requirement for lawyers in private practice to implement a client contingency plan, to come into effect in the event a lawyer becomes unexpectedly unable to continue practicing.

Contingency Plan Requirements

By-Law 7.1 mandates the creation of a contingency plan that addresses the following (The 5 A’s)

• Name an Administrator: Lawyers must designate a licensed administrator who can immediately take over their professional obligations if they are unable to continue practicing. The administrator will manage the wind-up of the lawyer’s professional duties, including notifying the Law Society, transferring client files, and accessing trust accounts, and facilitating the transition to a successor, if one is designated.

• Access to physical documents: The plan must specify where all client files, wills and will indices are stored and how to access them. This might include access to keys and security pass codes.

• Access to electronic files: The plan must include instructions for accessing digital records, including passwords, email, digitally stored will indices and accounting systems.

• Access to finances: The plan must outline the location of all trust accounts and financial records, along with contact details for bookkeepers or accountants. Document the authority and conditions for the administrator to access the funds.

• Additional elements: The plan must include any other necessary arrangements to wind up the lawyer’s business and protect client interests.
  

Practical Issues Specific to Wills and Estates Lawyers

1.     Finding an appropriate administrator:

If your administrator is also going to be your successor, they must have a level of expertise comparable to your own. For example, if you draft straight forward wills as a part of your general practice, a similar practitioner is appropriate. If you specialize in high net-worth cross-border clients with complex estate issues, you’ll need someone who has the expertise to support your clients.

Your administrator does not need to be your successor. You may choose to have your practice closed, or you may want to name a successor who is different from your administrator. Practically, finding an administrator with geographic proximity is more important than their ability to serve your clients. For solo or small firms, a reciprocal arrangement with a similar practice can be a good option. Larger firms may also be willing to take on this role.

2.     Discuss the issue of payment:

Administering a law practice is similar to being an executor – it’s time-consuming. Your administrator will be juggling this responsibility along with their own caseload. Clarify if and how they’ll be compensated. If so, will funds come from the firm’s operating budget, the sale of the practice, a contingency fund, or some other source?

Similarly, will your successor be required to pay for the practice? If so, how will its value be determined? If the administrator is also your successor, they may accept the role in exchange for the expansion of their practice.

3.     Make it as easy as possible for your administrator:

Before approaching a potential administrator, make sure that you’ve made the role as easy as possible. It’s much easier to agree to take on a responsibility that seems manageable. Be ready to show that you’ve “put your affairs in order”, with clear organization and communication.

If you are asked to consider becoming the administrator for another practice, look carefully to be sure these things have been addressed.

4.     Consider centralized will storage:

Dealing with your will bank has the potential to be one of the greatest challenges for your administrator. You may wish to ease the administrator’s burden and make your life easier right now by using a centralized will storage service like Custodius.ca, which gives your law firm an organized online will database without any ongoing storage costs. It makes your law firm more valuable to potential successors, provides successors with a turnkey will bank, retains future business for you and your successors, but without any ongoing cost or liability traditionally associated with will storage. These services also ensure your clients’ wills can easily be found after any transition. 

5.     Communicate your contingency plan well:

A contingency plan is only useful if the right people know it exists. Ensure your staff are aware of the plan and where to find it. Your personal executor and attorney for property should also be informed and know how to contact your designated administrator.

6.     Revisit the plan annually:

Filing the LSO annual report is the perfect time to quickly review your contingency plan. Ensure your administrator is still appropriate, your team knows where to find your plan, and how to contact your administrator in the event of a crisis.

A Final Thought:

As lawyers who regularly counsel clients on the importance of planning for the unexpected, it’s time we practice what we preach. A well-thought-out contingency plan not only fulfills a lawyer’s regulatory obligations—it’s a professional legacy worth leaving behind and models good practice, maintaining the credibility of the profession.