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I live in CA and an Attorney firm in OR overpaid me as as a Living Trust Beneficiary. Now he wants me to send back that amount

Roseville, CA |
Filed under: Trusts Living trust

The reason for the overpayment was because they did not reconcile their accounts before sending the checks out. We think he should recoup his money by filing a claim on his Professional Liability insurance under the errors and omissions clause.

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Attorney answers 4


So let me see if I got this right. You want the attorney who made a mistake to have to pay for the mistake himself either out of pocket or through his insurance (if he has any) so that you do not have to return the money you did not have coming and you do not deserve. It sound like you want to punish the attorney for his error so that you can remain unjustly enriched. Is there something beyond the attorney's error that might justify your position?


Since you have acknowledged the overpayment, you should promptly pay it back since you have no legal right to it. Assuming the sum was paid by the E&O carrier that would not relieve you of the obligation to reimburse the E&O carrier for the sum paid. Unless you want to be on the receiving end of a lawsuit – pay back the overpayment.

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The other attorneys are correct. You can't say: you made an honest mistake and now we have you by the you-know-whats and stick it to them. Also, you may have signed a release and refunding bond/agreement which obligated you to pay back any erroneous distribution.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website:

Howard M Lewis

Howard M Lewis


great counsel


It may appear to you that you received a windfall and that you are entitled to it because someone made an error. The reality of the situation is that you received something to which you were not entitled. You have acknowledged that you are not entitled to it, and that you don't care who has to pay for the error. Ultimately, if the OR attorney pays for it himself or through his E&O insurance, you will most likely be on the defendant's end of a lawsuit. You didn't share any facts about the release you most likely executed when you received the funds... My guess is that if this escalates to suit, you are going to eventually regret not doing the moral and equitable right thing and returning the overpayment.

When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. 

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