Probate law can be complex. Some studies show that attorneys practicing probate law commit more malpractice than in any other practice area. Attorneys handling probate matters must protect their clients’ desires and intentions since they also function as a fiduciary, which carries a high duty of care. In some situations, attorneys may also be liable to non-client beneficiaries.
Attorneys must adhere to a standard of professional care when handling a client’s case. Lawyers may commit malpractice when they engage in an act or omission that causes harm to the client and in which a competent attorney in the exercise of ordinary care would not have performed.
Duties and Tasks of an Estate Planning Attorney
The tasks of a probate attorney can be numerous. Some of these are:
- Information gathering: no estate planning is complete without the attorney having a complete record. This includes data about the client and family, the nature of the client’s assets, how they are titled, their value or approximation, how the client wishes to dispose of the assets along with contingencies, and names of an executor and successors, and those in fiduciary roles such as attorney-in-fact and trustees. Failing to gather this information and use it accordingly can lead to substantial problems in the future.
- Custody of signed documents: an attorney may wish to retain signed documents, but that depends on the client’s wishes. If the attorney retains them, he or she can immediately access them when needed. However, if the attorney misplaces them, she will be liable if the client or beneficiaries are damaged as a result. In Massachusetts, you generally have only a specific amount of time after the decedent dies to probate the estate. However, if you meet certain criteria, you can still file for late and limited formal probate or file a voluntary administration.
- Asset transfers and beneficiary designations: your estate planner needs an unambiguous understanding of how assets will be transferred, by whom and to whom. If assets are to be conveyed to a trust but are not held in trust when the asset owner dies or becomes incapacitated, then the intent to avoid probate will be thwarted. Similarly, if life insurance on the life of the client and other assets intended to be excluded from the gross estate are not transferred to the intended recipients or irrevocable trust, there could be substantial tax consequences that could have been avoided.
- Funding the Trust is often at the root of a malpractice case.
- Changes in the client’s family and nature of the client’s assets: the estate planning attorney, unless he explicitly expresses otherwise, may have to account for any changes in the client’s family such as divorces and re-marriages, blended family issues, and the nature of real estate transactions that could frustrate the decedent’s intent under a will. However, the court will likely not hold an attorney liable for not monitoring such changes unless the attorney or the firm represents the client on an ongoing basis. However, to avoid such complications or entanglements, the attorney should have state in the engagement letter that their firm has no affirmative duty to monitor and account for factual changes and other circumstances that may impact the client’s estate plan.
- Failure to include spousal rights in a will
- Failure to exclude heirs if requested by the testator or to include all intended beneficiaries
- Using a will where a trust would have been more appropriate
- Consent regarding conflicts of interest: attorneys have a duty to fully disclose any conflicts of interest when representing the client. For example, the attorney should not represent both parties where issues are disputed. If a bank is named trustee of the client’s trust, the attorney handling the trust and estate should not accept the bank’s offer to act as the trustee’s counsel. In cases where the family is feuding over beneficiaries, or where the attorney, trustee, or executor have competing personal or financial interests, informed consent from the client is necessary. In most cases, it is highly advisable to have separate attorneys.
- Cases between family members, siblings for example, are ripe for litigation and subsequent estate malpractice.
- Not investigating a testator’s mental capacity: if the testator has issues with mental clarity or cognition, the estate planning attorney has a duty to determine if the testator has the mental capacity to create a will. If the testator lacked testamentary capacity, the court can declare the will invalid.
Estate planning can be a minefield if not handled properly. Should you suspect or can show that your estate planning attorney negligently handled your estate, or that your interests were not accounted for despite the testator’s intent, you should consult a legal malpractice attorney.
Call the Law Firm of Burns and Jain
Negligence in estate planning is not that uncommon. Do not hesitate to consult with a legal malpractice attorney from Burns and Jain if you suspect misconduct or negligent handling of your estate or in situations where your interest as a beneficiary has been adversely affected. Our attorneys can assess your claim and determine if you have a valid malpractice claim.