Most people create a will or trust because they want clarity. They want their assets to go where they intend with as little cost and stress as possible for the loved ones they leave behind.
An estate plan only works, however, if it is legally effective. If a document is drafted incorrectly or not executed the way Florida law requires, it might not do what it was meant to do.
When that happens, families can face unexpected probate litigation, avoidable taxes or delays that create real financial harm. In some situations, those problems may raise questions about whether the estate planning attorney met the required standard of care.
How an estate plan can fail
A will or trust can fail for several reasons. Some problems come from the wording in the document, and others come from how it was signed and witnessed.
A few examples that can cause serious complications include:
- The will was signed without the required witnesses
- A self-proving affidavit is drafted incorrectly, creating avoidable proof issues later
- A trust is drafted with unclear or conflicting distribution instructions
- The estate plan fails to account for beneficiary designations that override the will
- A power of attorney is not executed properly, making it unusable when needed
- Tax planning language is missing or outdated, resulting in unnecessary taxes or penalties
Not every small mistake makes a document invalid. But even a small drafting or execution error can sometimes change the outcome in a way the person who created the plan never wanted.
The mistake may be discovered after death
Consider this common situation. A Florida resident hires a lawyer to prepare a new will that leaves a significant inheritance to an adult child and a stepchild, with a smaller gift to a longtime friend.
The lawyer prepares the will, and the client signs it at home. But only one person signs as a witness, or the second witness signs later when the client is not present.
Years pass, and no one realizes the will was not executed correctly. After the client dies, the children file the will with the probate court and learn it is not valid under Florida law.
If the will cannot be admitted to probate, the estate may pass under an older but still valid will. Or, it may pass under Florida’s intestacy rules, which are for those who die without a will. These rules can shift assets to different beneficiaries than the deceased intended.
For example in this situation, Florida’s intestacy rules would probably not allow the gift to the friend at all. The inheritances of the child and stepchild could be reduced or even eliminated, depending on whether Florida considers them the deceased person’s next of kin.
If that happened, all three intended beneficiaries would experience financial losses that might be directly caused by the negligence of the estate lawyer.
These errors can lead to malpractice concerns
Florida lawyers have ethical duties tied to competence and careful representation. Specifically, Florida Rule of Professional Conduct 4-1.1 states: “A lawyer must provide competent representation to a client.”
Competence in estate planning often includes more than drafting. It can require confirming the client’s goals, using clear language and ensuring the documents are executed correctly under Florida law.
In a legal malpractice claim, the issue is usually whether the lawyer owed a duty to the client, breached it, and caused financial harm. In estate planning, however, that harm may not show up until after the client has passed away. Can a non-client beneficiary even sue, when the duty was owed to the now-deceased client?
Yes. In Florida, an intended beneficiary can typically bring a malpractice claim against an estate planning lawyer when their inheritance is decreased or denied due to the lawyer’s negligence. (Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (Fla. 1993).)
Courts generally look for a clear indication in the estate planning document itself that the deceased intended to benefit the person or people bringing the claim. They also look for whether attorney negligence directly caused the loss of that intended inheritance.
Get more information
If you are dealing with a will or trust that does not seem to work the way it was supposed to, get legal advice as soon as possible. A probate dispute can move quickly, and deadlines may apply.
A legal malpractice attorney can review what happened and explain whether the problem appears to be a correctable defect, a probate issue or something that may support a negligence claim. Getting a clear explanation is often the first step toward protecting the estate and the people the plan was meant to provide for.