Estate planning is one of those areas where people rely heavily on the knowledge and experience of the attorney who’s helping them develop their estate plans. Unfortunately, serious mistakes can be made. In fact, the rate of legal malpractice claims involving estates and trusts has been rising.
In New York, typically the only person who can file a malpractice claim against an estate planning attorney is the client who created the estate plan. If relatives and others could sue someone else’s estate planning attorney, there could be no end to such claims. That rule was relaxed in one case by an appeals court to allow a personal representative of an estate to sue on behalf of the deceased.
Unfortunately, a serious problem with an estate plan often isn’t discovered until the person who created it is deceased. There are red flags, however, that anyone creating an estate plan should recognize. Let’s look at a few.
Making promises
One of an estate planning attorney’s jobs is to help clients minimize estate, gift and other taxes for their estate and their beneficiaries. However, an attorney shouldn’t be promising tax savings or tout it as a reason to hire them. It needs to be done within the law. Further, many people don’t have estates large enough to worry about such taxes.
Claiming knowledge they don’t have
Estate plans are as unique as the people who create them. If you have specific goals, such as a smooth business succession, dealing with assets in other states or abroad, protecting a loved one with special needs or setting up a charitable foundation, be sure your attorney has experience in this area. If they don’t, they could make serious mistakes that could cost you a lot of money to fix (if you catch them while you’re alive) or cause problems for others after you’re gone.
Rushing through the review process or not adequately answering questions
It’s crucial to review the final documents before you sign them, even though much of the language may sound like “legalese.” An estate planning attorney should give you an adequate review period for every document you sign and be willing to answer all of your questions.
If you believe that your estate planning attorney hasn’t acted competently or in your best interests, it’s wise to determine what your options are for taking legal action to make things right.