When a family clears out a parent’s Brooklyn apartment, the most daunting task is often the paperwork. Amid the bank statements and utility bills, you will inevitably find a mountain of medical records—discharge summaries, Medicare statements, prescription logs, and specialist reports. The immediate instinct is to haul these boxes straight to the shredder. After all, the patient has passed, and the privacy of those documents feels sacred.
But destroying medical records too soon is a critical mistake for an executor.
As an estate planning attorney, I spend a lot of time advising families on what happens after the funeral. The role of an executor is not just to distribute assets; it is to act as a custodian of the deceased’s legacy and legal standing. You are a fiduciary. Your job is to protect the estate, settle valid debts, and defend the deceased’s final wishes. To do that effectively, you need evidence.
Defending Against Will Contests
If your parent updated their estate plan late in life, those medical files might be the most valuable documents in the house. Under the Surrogate’s Court Procedure Act (SCPA) § 1410, any person whose interest in property is adversely affected by a will can file objections to probate. The most common weapon in a will contest is the claim that the deceased lacked testamentary capacity.
A disgruntled sibling or disinherited relative will argue that dementia, heavy medication, or general cognitive decline rendered the deceased incapable of understanding what they were signing. In these disputes, the outcome rarely hinges on witness testimony alone. It hinges on the contemporaneous medical records.
If you have the physician’s notes from the month the will was signed showing your parent was lucid, oriented, and making deliberate decisions, you can swiftly shut down frivolous litigation. Without them, the estate faces a protracted and expensive battle in Surrogate’s Court, relying on subpoenas to track down files that might have already been archived or purged by a retiring doctor.
The Contestability of Life Insurance
If the deceased purchased a life insurance policy relatively recently, the insurance company will aggressively scrutinize the payout. Most life insurance policies contain a two-year contestability period. If the policyholder dies within two years of the issue date, the carrier has the legal right to investigate the original application for material misrepresentations.
The carrier will want to know if the deceased hid a pre-existing condition, such as heart disease, hypertension, or a cancer diagnosis. To verify this, they will demand medical records. While the insurance company can eventually subpoena these documents from healthcare providers, an executor who already possesses the relevant files can satisfy the inquiry immediately. This expedites the investigation and secures the payout for the beneficiaries months faster than relying on hospital administrative departments.
Medical Debt and Fiduciary Duty
Healthcare billing is notoriously slow. An estate frequently receives a massive hospital bill six or even twelve months after the date of death. As the fiduciary, you cannot simply write a check from the estate account just because a piece of paper arrives in the mail. You have a strict duty to verify that the debt is legitimate.
Did Medicare already cover this? Was the procedure actually performed? Are there duplicate charges? If you have already shredded the itemized hospital bills, explanations of benefits (EOBs), and discharge papers, you have no baseline to audit the claims. Paying an invalid or inflated medical debt harms the beneficiaries, and they can hold you personally liable for the financial misstep during the final accounting of the estate.
Wrongful Death and Malpractice Claims
Sometimes, the circumstances of a death raise deeply troubling questions. If a family suspects that a surgical error, severe neglect in a nursing home, or a failure to diagnose contributed to their loved one’s passing, the estate may have grounds for a lawsuit.
Time is the enemy in these situations. In New York, under Estates, Powers and Trusts Law (EPTL) § 5-4.1, the statute of limitations to file a wrongful death lawsuit is strictly two years from the date of death. For a medical malpractice claim that did not immediately result in death, the window is generally two and a half years from the date of the malpractice.
To even determine if you have a viable case, a medical expert must review the complete patient history. While hospitals are required by state regulations to retain patient records for six years, requesting them post-mortem is a severe bureaucratic hurdle. It typically requires the court to formally issue Letters Testamentary or Limited Letters of Administration before a hospital will release a single page. Having the physical files already on hand allows your legal counsel to evaluate the merits of a claim immediately, rather than burning months of your limited window fighting with a hospital’s legal department.
A Practical Timeline for Executors
So, how long should you actually keep these documents?
I advise executors to retain all medical records for the entire duration of the probate or administration process. Do not destroy anything until the estate is formally closed, all creditors have been paid, and the final accounting is approved by the beneficiaries or the court. In a typical estate, this means holding onto the files for at least two to three years.
Not all documents carry the same weight. You should categorize what you find:
- Routine billing and EOBs: Keep these until the estate is settled and all medical debts are resolved.
- Diagnostic tests and physician notes: Keep these for at least three years, covering the statute of limitations for any potential wrongful death or malpractice litigation.
- Genetic or hereditary health records: Keep these indefinitely. Pass this specific information down to the children or grandchildren for their own preventative healthcare planning.
When it is finally time to clean house, never throw medical files in the regular trash. Hire a professional shredding service to destroy them, ensuring that sensitive identity and health data remains completely out of the hands of bad actors.
Stewardship. It requires patience—and a deliberate approach to the paper trail left behind.
Before you clear out a deceased relative’s files, make sure you understand your legal obligations as an executor. If you are preparing to open an estate and are unsure which documents to retain, schedule an estate administration consultation with our office to review the paperwork before you run the shredder.
