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Wills Trust Estates atty now admits settling an intestate proceeding improperly. Is this legal malpractice?

New York, NY |

Atty gave heirs (all related family members in different relationship to the deceased) an equal part of the estate. I told atty in writing (email) that disbursement was not in accordance with the law pertaining to intestacy and included a sample of the proper disbursement of the funds. Atty told me I was wrong. Surrogate Court discovered the error upon reviewing the file for closing. Atty suggested recouping money from overpaid heirs (less than $10,000 each). Overpaid heirs are not in financial position to refund the money. Furthermore, underpaid heirs do not want to hurt these family members. We want the attorney to make all necessary financial restitution to the underpaid heirs. Court has scheduled a conference. Note: atty has discussed situation with underpaid heirs only.

Attorney Answers 5


  1. Best answer

    You do not say how many heirs were underpaid and how many were overpaid. You might consider suggesting that the lawyer repay the underpaid heirs out of his or her fee. Failing that, you may very well have a claim against the Lawyer.

    Please note that I do not have enough facts to render legal advice on this issue. No attorney client relationship has been established by my response to this general inquiry and I am taking no action to protect your claim. If you wish to pursue an action you should contact an attorney of your choice as sooon as possible. There are time limitations that apply to these matters. Once expired, you will be unable to pursue a cliam.


  2. Retain your own counsel to attend the conference with you. Do not go unrepresented.

    We can be reached at 215-545-2201. Our firm has lawyers licensed to practice in Pennsylvania and New Jersey and in the Federal Courts of those states. The information provided is for general informational purposes only and is not intended to be legal advice. I am only licensed in the Commonwealth of Pennsylvania and I am not providing you with specific legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information provided may not apply to any specific factual and/or legal set of circumstances and/or the jurisdiction where you reside. No attorney-client relationship is formed nor should any such relationship be implied. The information provided is of a general nature is not intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. Your question, although you may believe is simple, it is not simple. You require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.


  3. Unless the court can work it out, the underpaid heirs should hire a legal malpractice lawyer and consider suing the attorney.

    Feel free to contact me at (212) 577-9797 or by email at: Eric@RothsteinLawNY.com. I am a former federal and State prosecutor and have been doing criminal defense work for over 17 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


  4. I don't believe a math error in an estate case is malpractice.

    Good luck.


  5. My colleagues all give good answers. I only add that when a distribution is made such as you describe it is normal practice to have the beneficiary sign a receipt and release agreement that may contain a 'claw-back" clause which means the error (malpractice) can be corrected by having the overpaid disgorge as per the receipt and release agreement terms, thereby not making it the attorney problem but the overpaid to figure out what to do to come up with the funds. If such is in place then you will not likely get the attorney to pony up the difference jut because you feel badly for the overpaid having to refund the monies they are not entitled. You could leave it as is and enter into a Stipulation of Settlement among all overpaid and underpaid to leave things as they are....and then ask the attorney to do this aspect for free and give a refund of some portion of his fee for the problem if he is unwilling to dig deep to fix it as you are hoping will be the legal mandate by the Surrogate's Court.

    My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained. Please click "helpful" or "best answer" if my answer added any value or add a "comment" if you have more info for me to help you get a better answer.

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