Mistakes in an Estate Plan

When you’ve been maltreated by a lawyer’s estate planning mistakes, you might have a claim for legal malpractice. Read below for more information concerning common types of estate planning mistakes and what you are able to do about them.

Estate planning lawyers have a legal responsibility to act in the best interests of their clients. But occasionally lawyers make estate planning mistakes that are expensive for your family. If you think your estate planning lawyer was responsible for making a mistake, there could be a claim for legal malpractice.

Find out more about general types of estate planning mistakes and what you are able do about them.

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General Estate Planning Mistakes

An estate planning lawyer’s responsibility is to create a plan that accomplishes the client’s objectives, taking into consideration the state laws and tax concerns. A common estate plan involves a will and/or trust, including powers of attorney.

Some of the most common estate planning mistakes include:

Mistakes in the way a will or trust is created. Usually, these mistakes occur when terminology isn’t specific enough about property and/or heirs.
Mistakes in the carrying out, or signing, of the will. Wills have very particular stipulations for signatures and witnesses.
Allowing an individual to sign estate planning documentation when they do not have “testamentary capacity.” Meaning they aren’t completely aware of property they own, who members of their family are, or what they are even signing.
Leaving things or individuals out of a will and/or trust due to the lawyer not thoroughly asking about heirs and assets.
Devising an estate plan that isn’t in the best interest of those involved. This could mean not considering tax ramifications or being careless in funding or management of a trust.

In many cases, mistakes go beyond the lawyer that created the estate planning documentation. There may be misconduct on the part of CPA’s, trustees, or the estate manager.

What to Do About Estate Planning Mistakes

If you identify a mistake in your own estate planning documents and no one was hurt by it, your best approach is to get a hold of the lawyer that created it. Explain the issue and ask the lawyer to create new documentation for you.

When your estate planning documentation is several years old, it might be time to have a lawyer create a new estate plan that illustrates your present family and financial situation. But if you think the lawyer’s mistake has, as of now, affected you and/or your family, you might have a claim for legal malpractice.

When the mistake involves the estate plan of an individual that has already passed away, it’s too late to alter the estate planning documentation. When you believe the lawyer creating the documentation is at fault, a legal malpractice lawsuit could be an option.

What Is Considered Legal Malpractice?

Legal malpractice is when a lawyer is negligent in carry-out their responsibility. There are 3 legal malpractice factors, and you are required to have all of them for winning a legal malpractice lawsuit.

The lawyer is required have a legal responsibility to the individual filing the claim. Lawyers customarily have a responsibility to their clients, but the mistake may not be found until after the client has been deceased. In many states, estate planning lawyers also have a responsibility to the individual the estate plan was assumed to benefit, like heirs and trust beneficiaries.
The lawyer is required to have been found neglectful. Meaning an ordinarily attentive lawyer would not have made the mistake.
The lawyer’s negligence is required to have caused a financial loss, or “damages” to the individual bringing about the case.

It’s not always easy to substantiate legal malpractice, particularly if you’re an heir of someone that has already passed away. For instance, suppose your mother told you that you would inherit her house, but her estate plan placed the house in a trust that included you and your stepfather. To substantiate there was a mistake, you are going have to present evidence—like e-mails or notes from the lawyer’s file—that your mother planned for the house to be only yours.

If you surmise an estate planning mistake has harmed you, it’s best to speak with a lawyer that understands legal malpractice law. A lawyer can go over your situation and counsel you on the next steps you should take.

Source:

Haskins, J. (2020, July 20). Who is liable when there are mistakes in an estate plan. LegalZoom. Retrieved February 8, 2022, from https://www.legalzoom.com/articles/who-is-liable-when-there-are-mistakes-in-an-estate-plan

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