St. Denis & Davey, P.A.

Legal Malpractice Issues

Bad estate planning advice could be legal malpractice

| Apr 20, 2018 | Professional Malpractice Law |

Hiring an estate planning attorney to help draft a will in Florida can prevent disputes and challenges later. However, state laws differ, and laws regarding probate, estate planning and taxes change frequently. If an attorney does not pay rigorous attention to these, and as a result does not perform his or her legal duty correctly, a beneficiary’s inheritance could be at stake. 

The American Bar Association advises attorneys to watch out for common pitfalls that could cost clients serious financial losses, and which could lead to legal malpractice litigation. For example, if the testator’s attorney was not aware of the limitations placed on who can witness a will’s signature, and one of the acting witnesses was not eligible, the will could be rendered invalid. The state’s intestacy laws could apply instead, which may result in a lesser inheritance for a child or grandchild than the decedent intended.

In another example, suppose after some life changes, a Florida resident decides to write an all new will and revoke the old one. This is stated explicitly in the new will’s language. Later, the testator decides that the terms of the old will really are more suitable. He or she seeks an attorney’s advice and is told that the old one is automatically reinstated by revoking the new one, so there is no need to write a third will. This is true in some states. However, according to the Florida Probate Code 732.508, Revival by revocation, revoking the second will does not revive the first one, even though it still exists. The probate court would treat the estate as if there was no will.