People establishing estate plans generally rely on an attorney to guide their process. They provide information about their families, legacy wishes and resources. Their lawyers can then assist them with the creation of a comprehensive estate plan that protects their loved ones and achieves their goals.
Unfortunately, sometimes lawyers provide inaccurate advice or make oversights that impact a client’s protection and control over their legacy. In some cases, those mistakes may be serious enough to warrant allegations of legal malpractice. For example, the following are some of these mistakes that are serious enough to raise questions about the standard of legal support during estate planning.
1. Errors regarding signatures and witnesses
For wills, powers of attorney and other estate planning documents to serve their intended purpose, they must conform to all legal requirements. Typically, this means including the right language in the documents.
The testator drafting the instrument typically needs to sign or have an agent sign on their behalf if they are incapable of signing. There also need to be witness signatures on certain documents.
If attorneys draft documents but do not follow through with the proper signing and witnessing of those documents, their mistakes may render the documents useless when people need them. Those mistakes are so egregious that any other professional could easily identify and prevent them, which can lead to claims of malpractice.
2. Recommending the wrong type of trust
Trusts can help people in an assortment of different estate planning situations. Some people want to skip a generation when leaving inheritances for their loved ones.
People who remarry later in life may want their spouse to remain in their home after they die but their children to inherit the property eventually. Concerns about estate taxes or debt collection could also be reasons to fund a trust. There are two main categories of trusts and many subtypes that fall into each category.
Whether someone creates a revocable or irrevocable trust, the type of trust they establish is likely a reflection of their attorney’s recommendation. The wrong type of trust may not provide the type of protection that an individual actually requires.
3. Including inappropriate terms
In some cases, the probate courts may set aside wills and other documents that include illegal and inappropriate provisions. Other times, questionable inclusions in estate planning documents can lead to conflict among family members and protracted probate litigation. The situation could damage relationships permanently and could also significantly diminish the overall value of the estate.
In scenarios where attorneys do not conform to best practices and make mistakes that negatively impact their clients, it may be possible to pursue a legal malpractice lawsuit. Holding an attorney accountable can help people recoup some of the harm caused by improper estate planning representation.