Common Mistakes in an Estate Plan: What are Considered as Malpractice?

rajat sharma


Common Mistakes in an Estate Plan: What are Considered as Malpractice?

If a lawyer’s estate planning error caused you harm, you might be able to sue for legal malpractice. Find out more about the typical estate planning mistakes that people make and what you can do to avoid them.

Estate planning lawyers are to represent their clients’ interests. Attorneys make estate planning mistakes that cost your family money. You may be able to file a claim for legal malpractice if you think an estate planning lawyer made a mistake. 

 The Trustee may be accountable to the trust’s beneficiaries.  Also any third parties for errors made while administering the trust. You will have to communicate with other parties in your capacity as Trustee, particularly when it comes to the trust’s investments.

Find out more about the typical estate planning mistakes that people make and what you can do to avoid them.

What Can You Do About Estate Planning Errors

Get in touch with the estate planning lawyer if you find a mistake in your estate plan. Ask the attorney to draft a new document for you after outlining the issue.It might take time to have a lawyer draft a new estate plan that takes into account your current status if your estate paperwork is more than a few years old.

If you feel that a lawyer’s error has already caused harm to you or your family, you may have grounds for a legal malpractice claim.

It is too late to amend the estate and it is too late to amend the estate planning documents if the error pertains to a deceased estate plan. A legal lawsuit might be an option if you think the attorney who is creating the documents is at fault.

What Can Be Seen as Legal Malpractice?

 Legal malpractice occurs when attorneys are negligent in their work. To succeed in a legal malpractice claim, you must have all three of the following factors. 

  • The attorney must owe a legal obligation to the claimant. Although lawyers are always obligated to their clients, mistakes often only come to light after the client has passed away. In some areas, estate planning attorneys also owe a duty to the heirs and beneficiaries of trusts, who are the intended recipients of an estate plan.
  • The attorney must have made a mistake. A prudent lawyer by nature wouldn’t have committed this error. 
  • The person filing the action must have suffered financial harm, or “damages,” as a result of the lawyer’s negligence.

Legal misconduct is not always easy to know, especially if you are the successor to a decedent. For instance, despite your father’s assurances that you would inherit his home, the property was instead placed in a trust with someone else. You’ll need to present proof showing your father meant for the house to be yours to show that there was an error. 

Common Estate Planning Mistakes

 Planning an estate is more difficult than most people think. Making a mistake when preparing your estate can have a significant negative impact on you and your loved ones. Which makes it hard for you to retire the way you had intended.

By collaborating with a skilled estate planning lawyer, these mistakes can be avoided. The most frequent errors people make while drafting an estate plan are listed below.

  1. Uncertainty About an Estate Plan Before You Sign

 91% of people sign legal terms and conditions without understanding what they are doing. Avoid having this occur to you while signing your estate plan. Inform your attorney if there is anything you are signing that you do not understand. 

This is so that they can provide you with a more thorough explanation. Failure to create an estate plan that achieves your goals might have major repercussions.

  1. Not Enough Updating Of Estate Plan 

You should review your estate plan roughly every five years or anytime a significant life event occurs. You should also revise your estate plan if your net worth changes, you lose your employment, or your residence changes.

  1. Revocable Trusts Not Being Funded

 A living trust or revocable trust creation is only the first step. To be effective, trusts must be funded. If not, your assets will go through the probate process and might be distributed to your heirs improperly. 

While some assets, like cash and stocks, are simple to use to fund trusts, others, like real estate and vehicles, are more complicated. You can get advice on best practices from your estate planning lawyer.

  1. Failing to Create a Power of Attorney or Forgetting to Update One

In the event that you become unable to make choices due to a medical condition, a power of attorney enables a responsible person to act on your behalf. One power of attorney can give the trusted person the authority to make financial decisions for you. 

While a different power of attorney gives that person or another person the power to make medical decisions on your behalf. You need to update your powers of attorney to include someone who can make these difficult financial and medical decisions for you. For instance, if you listed your spouse as your power of attorney and your spouse later dies.

  1. Retirement Plans and Trusts Are Not Coordinated

 Strategies exist to prevent over-taxation during estate planning. It is for both you and your loved ones. If you want to make a living trust the beneficiary of your retirement plan, you must form a see-through trust to save taxes. Even though adding a person to a trust as a beneficiary is less difficult, both situations need the careful advice of an estate planning lawyer.

Some Other Mistakes That Can Occur in Estate Planning

Listed below are common mistakes that could occur in estate planning.

  •  Errors in the drafting of a will or trust. These blunders frequently occur when wording are vague regarding property or heirs. 
  •  errors in the will’s execution or signature. The signing and witness requirements for wills are fairly precise. 
  • allowing someone who lacks “testamentary capacity” to sign estate planning forms. This indicates that they are not fully aware of the assets they own, the makeup of their family, or the agreements they are making. 
  • leaving things or persons out of a will or trust because the lawyer didn’t ask enough questions about heirs and assets. 
  • leaving items or individuals out of a will or trust as a result of the attorney’s incomplete inquiry regarding heirs and assets. 
  •  Putting together an estate plan that is not in the interests of the parties. This could entail failing to take tax implications into account or being careless while funding or managing a trust. 
  •  Sometimes errors go beyond the boundaries of the attorney who created the estate planning documents. Accountants, trustees, or the estate administrator may have acted improperly.


Seek legal advice from a lawyer who knows legal malpractice legislation if you feel that an estate planning error has caused you harm. A lawyer can check your case and provide you with advice on what to do next.