Legal Malpractice in Trusts and Estates in Massachusetts
Burns & Jain has successfully litigated cases against wills, trusts and estates attorneys in Massachusetts.
What Are Trusts and How Do They End Up the Subject of Legal Malpractice?
Trusts are legal devices to protect real estate, money or other financially valuable assets. Sometimes trusts are set up to protect an asset from potential creditors, sometimes the trust is to protect assets from estate taxing authorities, and sometimes, as in a Medicare Trust, to protect a spouse from having to exhaust all assets to pay for a nursing facility for their partner.
Trusts require proper set up by the attorney, proper “funding” by the settlor and proper fiduciary maintenance by the trustee. Lawyers are notorious for making trusts complicated. Lawyers sometimes try to represent both “sides” (the daughter who found the trust lawyer for the parents has the lawyer do a will for herself, for example) and therefore create a conflict of interest. Many malpractice cases involved failure to explain to the client how to execute or fund the trust. Legal malpractice cases have involved attorneys who set up a Real Estate Trust but failed to deed the real estate into the trust …and then filed the real estate trust with the Registry of Deeds or Land Court.
Setting up a Medicare Trust is often a cause of legal malpractice. These trusts require that all assets be put into the trust. It is often hard for folks to actually complete the work necessary in Medicare Trusts, and the attorney must be vigilant for the trust to work.
Lawyers breach their duty to clients in multiple ways in trust cases – they fail to properly draft the trust, they fail to properly get the trust funded (putting the assets in the trust’s name) and, of course, they occasionally steal from or neglect the trust resulting in significant losses to clients.
What Are Estates and How Do They End Up the Subject of Legal Malpractice?
After someone dies, his or her assets that are not in trusts or don’t pass automatically to beneficiaries (joints ownerships, 401k plans, life insurance) are probated in the Probate Court. This is a recipe for legal malpractice if attorneys fail to secure assets for the estate, fail to properly include parties in the estate, overcharge for managing the estate, acts in contrary to his or her client’s interest, or neglects litigation in a will or estate case.
Probate contests between siblings, or between beneficiaries, are common. These cases are often destructive to a family and can be expensive. Burns & Jain has been involved representing the victims of these cases – when attorneys fail to zealously represent their client’s interests; when they overbill; when there is a conflict of interest because the attorney used to represent both siblings, and now represents one against the other.
Will You Need An Expert Witnesses In Trust and Estate Legal Malpractice
Yes. Trust and Estate law is complicated. While in some cases the neglect and damages seem clear, we still need to retain a lawyer who is an expert in trusts and estates to be able to assist in your case.
First, the attorney expert will be able to write a report that we can use for a demand – to show the opposing counsel that we are aggressively preparing your case, and that we will be ready for litigation. Second, if the insurance defense attorney takes your case seriously and your case is ripe for mediation, we will need your expert’s advice throughout that process – when defense counsel throws up every roadblock and has his or her own expert. Finally, if you case is litigated in court, we will need the expert’s assistance to respond to motions, answer interrogatories, and at the time of trial.
Retain Competent Counsel in Legal Malpractice
If you had a trust that was miswritten or mishandled by your former lawyer, resulting in damages to you or your family, you may have a legal malpractice case against your former lawyer.
If you had an estate that you were the administrator or executor of, and your lawyer mishandled the estate, resulting in money damages to you or your family, you may have a case against your former lawyer. If you were the victim in the probating of an estate you may also have a case against the estate, but not the lawyer.
Trusts and estates are complicated. They involve assets that are significant and meaningful. Seek competent counsel. The attorneys at Burns & Jain have represented victims of legal malpractice in trust and estate malpractice for decades. We have settled, mediated, and litigated these cases with great success for our clients.
Call Burns & Jain for a free legal malpractice consultation.