A lawyer was hired to draft a trust for my parents. Nothing was ever put in the trust. Upon my latest parent passing, his will was probated which ended up costing the estate about $20,000 more than the trust would have and has caused a four year delay of distributing the estate assets due to probate and administrator complications. There was 8 years between the time the trust was drafted and my last parent passed. (My first parent's will was never probated). Based on that, would you say there is or isn't a valid claim against the original lawyer to drafted the trust, but apparently never ensured anything ever be put in it?
Richard Jonathan CahanLandlord / Tenant LawyerRound Rock, TX ·
This is a common issue and the main reason Trusts do not work. The attorney could have some liability but likely does not. A full review of the matter would be needed, a review of the original fee agreement and any documents that instructed your parents to put property into the trust.
I'm sorry to hear about your parents.
As Attorney Cahan stated, this is unfortunately a common problem. Attorneys who draft trusts do instruct clients to fund the trust with the desired property. Attorneys sometimes give clients written guidelines about how to do so. However, in many cases the desired property is never transferred into the trust, and there can be any number of reasons why.
I suggest you contact a local trust and estate litigation or probate attorney to discuss the details of your particular situation. An attorney will need to know the details of what happened in order to properly advise you.
Angela Marie Amalfi SoliceGuardianship Law AttorneyHouston, TX ·
It is common for an attorney to draft a trust and then provide instructions to the client about how to fund the trust. So the answer is it depends. Was the attorney hired just to draft a trust or was the attorney hired to draft the trust and assist in funding the trust. If you can find the attorney/client contract that should answer this question. However, even the most experienced estate planning attorney will tell you that if you are trying to avoid probate completely by creating a trust, more times than not something is left out and probate will still be necessary. To know for sure you will have to consult an attorney that handles legal malpractice cases.
I'm not a fan of living trusts just to avoid probate because this is typical. What I usually find is the lawyer drafts and files the deeds to transfer real property, leaves extensive instructions to the client on how to transfer everything else, and the client does little to none of the work (sometimes not even signing the deeds sent to them). So, my guess is the client not the lawyer is to blame. BUT, wait, there is more . . . there is no reason that probating a will should cost $20,000! unless there were other disputes. If there were other disputes, it is highly likely that the trust would NOT have prevented the same disputes and the same costs.
