When is an attorney negligent in settling an estate? My aunt passed away 2 years ago. Properties have been sold, stocks have been sold, taxes have been payed. Mistakes were made by the attorney in regard to value of a stock. He corrected and resubmitted to probate over 6 months ago. My elderly uncle is executor and according to the lawyers assistant he has fulfilled his duties and is waiting for the attorney to distribute proceeds to the 7 heirs. 6 weeks ago the attorney said settlement would take place in 3 weeks. He will not accept calls from any of the heirs and my uncle is easily confused. Is this lawyer negligent?
It is really hard to say. There are a lot of variables that could make the attorney negligent. Even if he is negligent (for his mistakes) the damages to your family are probably pretty minimal (assuming he fixed the mistake). Probate is an extremely complicated process that has some very specific deadlines and procedures. Sadly it is not uncommon to see delays in probate that stretch a deadline from 3 weeks to 6 weeks. When you think about it, once the checks are mailed the attorney cannot undo distributing the money. He will be very cautious about that last step because any mistakes once the check is mailed may very well come out of his pocket.
Another thing to consider is that after a final account is filed there is still time for it to be appealed. The appeal period is usually 30 days. He may want to wait out that period before distributing funds. If in 3 weeks the accounting was going to be approved he may have decided to wait the additional 4 weeks to be extra safe.
The most negligent part of your message is the lawyers failure to communicate effectively. That is actually a ethical obligation of lawyers. But again I am not really sure that would warrant a law suit. I would keep trying to contact him and/or if it becomes a continued problem call a lawyer and ask them to investigate.
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It does not appear from the information provided that the attorney was negligent in settling the estate. The use of what was later determined to be an incorrect value for a stock is a clerical error and not necessarily negligence. You should keep in mind that the attorney is representing your uncle the executor and not the heirs. Your uncle is executor has a fiduciary duty to the heirs, but the attorneys obligations are first to the executor. You may for many reasons which are not known to me had determined that he cannot freely communicate with the heirs.
Rather than relying upon placing calls which are not being accepted, I would suggest that you write to your uncle and copy the attorney making your concerns and whatever your requests are known. I would also request a written reply as to those concerns.
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Negligence is the most common cause of action in legal malpractice claims. An attorney was negligent if they did not use a reasonable degree of care. The client must prove that the attorney took an action that a prudent attorney would not have taken or that the attorney failed to do something that a prudent attorney would have done. For example, if an attorney gives a client the wrong advice the attorney may be negligent if a prudent attorney would not have done that.
With regards to settling an estate, it is important to note that although there are many people involved, the only person who could bring a negligence claim against an attorney is the client. The client would probably be the executor therefore an heir to an estate could not bring a claim against an attorney distributing the estate.
If you have any further questions regarding estate and trust law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at [email protected]
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