Estate Planning Malpractice Florida
The rights of non-clients to sue your parents’ estate planning lawyer seem to be increasing. At least in Florida. A recent Florida Appeals Court opinion on estate planning malpractice Florida helps guide family members and heirs. This legal commentary will discuss whether you can sue your grandmother’s trust lawyer.
Understanding Florida Malpractice
Legal malpractice is a cause of action, or lawsuit, that is brought against a Florida lawyer. It is often referred to as professional negligence. A Florida lawyer commits malpractice when their standard of care, their services, or failure to provide services, fall(s) below the standard. What standard? The standard of a reasonable attorney in that particular geography. Providing bad legal services can be as simple as not telling your client that she has rights. Or a cause of action against someone. But, can a trust beneficiary, heir, son or daughter sue mom or dad’s attorney who wrote the wills and trusts?
Estate Planning Malpractice Florida
Many times, family members or adult sons and daughters want to sue mom or dad’s estate planning lawyer. But, many times, heirs are prevented from suing for estate planning malpractice Florida. Why?
Three of the most common defenses to professional negligence include blowing the statute of limitations.
- You didn’t sue fast enough. The statute of limitations for legal malpractice is 2 years. Read Chapter 95.11 (4)(a), Florida Statutes. (To read about stopping or “suspending” or tolling that time period and the computation of time, read the entire CHAPTER.) And remember: a letter won’t work. Unless you have a signed valid tolling agreement, you need to file a lawsuit to stop that statute of limitations clock.
- Another good defense is lack of privity. Generally, non-clients cannot sue someone else’s attorney for malpractice. (We’ll get into this recent 2nd District Court of Appeal case shortly.) Was your mom’s lawyer supposed to put you in the will, but did not? Did dad’s attorney draft a bad Power of Attorney or Trust? Now, under Florida law, courts are permitting certain harmed individuals to sue. Have you heard the term “third party beneficiary?”
- Finally, know what you are fighting over. Bad service does not carry the day. You need to prove at trial that you were damaged. Yes, lack of damages is a good defense.
June 23, 2021 Florida Appeals Court Opinion
We have previously written about Florida malpractice. In fact, we have given Florida Bar-approved continuing legal education courses on this subject. We even included a discussion of estate planning malpractice Florida. Now, let’s turn to a June 23, 2021 appellate opinion on this subject. The case is Ellerson v. Moriarty. This case dealt with an inheritance of Florida real property. And a Florida trust. A trust created an inheritance to Ms. Ellerson. Her grandmother created the trust. The trust was prepared by grandmother’s attorney. Her lawyer allegedly did NOT PREPARE A DEED to transfer the Florida real estate. One of the questions which needs to be answered by the trial court is. Did the grandmother’s lawyer undertake a duty to fund the trust? This is a classic case of allegations of estate planning malpractice. An amendment to the grandmother’s trust was created. Very common in Florida, right? In that trust amendment, the plaintiff, Ms. Ellerson, was supposed to inherit real estate. HOWEVER, no deed was ever prepared to transfer the real estate. Estate planning malpractice Florida? Or not?