Who Is Liable When There Are Mistakes in an Estate Plan

Who Is Liable When There Are Mistakes in an Estate Plan

by Jane Haskins, Esq., July 2020

Estate planning lawyers have a legal duty to act in their clients' best interests. But sometimes lawyers make estate planning errors that cost your family money. If you believe an estate planning lawyer has made a mistake, you may have a claim for legal malpractice.

Learn more about common types of estate planning errors and what you can do about them.

Who Is Liable When There Are Mistakes in an Estate Plan

Common Estate Planning Mistakes

An estate planning lawyer's job is to develop a plan that accomplishes the client's goals, taking into account state laws and tax considerations. A typical estate plan includes a will and/or trust, plus powers of attorney.

Some of the most common estate planning mistakes include:

  • Mistakes in the way a will or trust is drafted. Often, these errors happen when language isn't specific enough about property or heirs.
  • Mistakes in the execution, or signing, of a will. Wills have very specific requirements for signatures and witnesses.
  • Allowing someone to sign estate planning documents when they don't have "testamentary capacity." This means they aren't fully aware of the property they own, who their family is, or what they're signing.
  • Leaving things or people out of a will or trust because the lawyer didn't thoroughly ask about heirs and assets.
  • Creating an estate plan that's not in the best interest of the parties involved. This might mean not considering tax consequences or being negligent in funding or administration of a trust.

In some cases, mistakes extend beyond the lawyer who prepared the estate planning documents. There may be wrongdoing on the part of accountants, trustees or the estate administrator.

What to Do About Estate Planning Errors

If you discover a mistake in your own estate planning documents and no one has been hurt by it, the easiest approach is to contact the lawyer who created your estate plan. Explain the problem and ask the lawyer to prepare a new document for you.

If your estate planning documents are several years old, it may be time to have a lawyer prepare a new estate plan that reflects your current family and financial situation. But if you believe a lawyer's mistake has already harmed you or your family, you may have a complaint for legal malpractice.

If the error involves the estate plan of someone who has already passed away, it's too late to revise the estate planning documents. If you believe the lawyer preparing the documents is at fault, a legal malpractice lawsuit may be an option.

What Is Considered Legal Malpractice?

Legal malpractice is when lawyers are negligent in performing their jobs. There are three legal malpractice elements, and you must have all of them to win a legal malpractice lawsuit.

1. The lawyer must have a legal duty to the person filing the claim. Lawyers always have a duty to their clients, but the mistake might not be discovered until after the client is deceased. In some states, estate planning lawyers also have a duty to the people an estate plan was supposed to benefit, such as heirs and trust beneficiaries.

2. The lawyer must have been negligent. This means an ordinarily careful lawyer wouldn't have made this mistake.

3. The lawyer's negligence must have caused financial harm, or "damages" to the person bringing the case.

It's not always easy to prove legal malpractice, especially if you're an heir of someone who has already passed away. For example, suppose your father told you that you would inherit his house, but his estate plan placed the house in a trust that included you and your stepmother. To prove there was a mistake, you'll have to provide evidence—such as emails or notes from the lawyer's file—that your father intended the house to be yours alone.

If you believe an estate planning mistake has hurt you, it's best to consult with a lawyer who understands legal malpractice law. A lawyer can review your situation and advise you on next steps.