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

Asked 10 months ago - 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. Jacqueline Marie Thomas

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    Contributor Level 3

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    Answered . 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... more
  2. Eric Edward Rothstein

    Contributor Level 20

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    Answered . 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... more
  3. Peter Christopher Lomtevas

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

    Good luck.

  4. John P Corrigan

    Contributor Level 19

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    Answered . 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... more
  5. Samuel Cohen

    Contributor Level 20

    2

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    Answered . 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... more

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