Malpractice by type of case
Can You Sue a Lawyer for a Botched Will or Trust?
Whether a beneficiary can sue over a botched will depends on the state. California allows it; Texas and New York generally do not, but the estate can sue.
Sometimes. If a lawyer's drafting error meant you did not receive what the person who died clearly intended, most states let you, as the intended beneficiary, sue the lawyer even though you were never the client. A minority of states, including Texas and New York, still block beneficiaries from suing, but in those states the estate's executor can often bring the claim instead.
Estate planning now tops the list of practice areas for malpractice claims, and the rules on who can sue vary more here than almost anywhere else.
Key takeaways.
- Estate, trust, and probate work drew more malpractice claims than any other practice area, 13.58 percent, in the ABA's 2020 to 2023 Profile.
- Most states let an intended beneficiary sue the lawyer who drafted a will or trust, a rule that traces to Lucas v. Hamm (Cal. 1961).
- Texas and New York still bar most beneficiary suits for lack of privity, but both let the estate's personal representative sue the planner.
- Damages are usually the lost inheritance or the extra estate tax the error caused.
- In California, the malpractice clock on a document that only takes effect later, such as a will, starts when that event happens.
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Warning signs.
- A gift in the will failed because of how it was worded or witnessed.
- The will or trust was ruled invalid after the person died.
- Property the person meant to leave you passed another way because a deed or account was never retitled.
- The estate paid a large tax bill that planning was supposed to avoid.
- The person told you they had updated their will, but the lawyer never finished it.
- The lawyer who drafted the will was also named as a beneficiary or executor.
What to gather.
- The will, trust, and any earlier versions or drafts.
- Any probate court orders finding the will or a gift invalid.
- Letters, emails, or notes showing what the person who died wanted.
- The lawyer's engagement letter and billing records, often held by the estate.
- Estate tax returns and correspondence with tax authorities.
- Deeds, beneficiary designations, and account titles.
- Names of witnesses who heard the person describe their plans.
What estate planning malpractice looks like
Estate planning errors usually come to light after the client has died, when nobody can ask what they meant. Common problems include wills that were not properly signed or witnessed, gifts drafted in a way that violates a technical rule, trusts that fail, assets that were never moved into a trust, and tax planning that did not work.
In the ABA's Profile of Legal Malpractice Claims covering 2020 to 2023, estate, trust, and probate work accounted for 13.58 percent of malpractice claims, the most of any practice area, up from fourth place in the prior study. Drafting errors in general also rose in that study; see drafting errors.
Two published examples show the stakes. In Belt v. Oppenheimer, Blend, Harrison & Tate (Tex. 2006), the executors alleged the father's estate owed more than $1,500,000 in tax that competent planning would have avoided. In Estate of Schneider v. Finmann (N.Y. 2010), the estate alleged the lawyers' advice put the proceeds of a $1 million life insurance policy back into the taxable estate.
Can a beneficiary sue the lawyer who drafted the will?
The obstacle is privity. Traditionally, only a lawyer's client could sue for legal malpractice. The client in estate planning is the person making the will, and they are gone by the time the mistake surfaces.
California broke from that rule first. In Lucas v. Hamm (1961), the California Supreme Court held that intended beneficiaries of a will can sue the drafting lawyer for negligence even though they were not the lawyer's clients. The same opinion also shows how hard these cases can be: the court found the lawyer was not negligent, because the rule against perpetuities he ran afoul of was so confusing that a reasonable lawyer could have made the same mistake.
Texas went the other way. In Barcelo v. Elliott (1996), the Texas Supreme Court held that a lawyer hired to draft a will or trust owes no professional duty of care to the people named as beneficiaries. The court acknowledged that the majority of states addressing the issue had relaxed the privity barrier, citing decisions from California, Connecticut, the District of Columbia, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Oregon, Pennsylvania, and Wisconsin. As of 1996, it listed Nebraska, New York, and Ohio decisions going the other way. Those lists are a snapshot, and some states may have moved since.
| State | Can beneficiaries sue? | Can the estate sue? |
|---|---|---|
| California | Yes (Lucas v. Hamm, 1961) | Not the issue in Lucas |
| Texas | No (Barcelo v. Elliott, 1996) | Yes (Belt, 2006) |
| New York | Generally no, absent fraud or special circumstances | Yes (Schneider, 2010) |
States that allow beneficiary suits use different tests, such as a balancing of factors or a third-party beneficiary theory, and some limit claims to beneficiaries named in the document. Check your state's page, for example California, Texas, or New York.
When the estate, not the beneficiary, brings the claim
Even in strict privity states, the estate itself can usually sue. The estate stands in the shoes of the person who died, who was the lawyer's client. The Texas Supreme Court held in Belt v. Oppenheimer (2006) that nothing bars an estate's personal representative from bringing a legal malpractice claim on behalf of the estate against the decedent's estate planners. New York adopted the same rule in Schneider, while keeping strict privity for beneficiaries.
This matters most for tax mistakes, which hurt the estate as a whole. It helps less when the error shifted money from one family member to another, because the estate may not have lost anything overall. If you are a beneficiary in a strict privity state, talk to the executor, and consider whether the executor has a conflict of interest of their own.
What you have to prove and what it is worth
You must show the lawyer fell below the standard of care for estate planners and that the error caused a loss. Proof of what the client intended is central. A signed draft, a letter of instructions, or the lawyer's own notes can be decisive. A claim resting only on family members' memories of what the person said is much harder to prove.
Damages are usually measured in one of two ways:
- Lost inheritance. What the beneficiary would have received if the document had worked, minus what they actually received.
- Extra tax or expense. Estate tax, penalties, and legal costs the estate paid because of the error, as in Belt and Schneider.
An expert witness, usually an experienced estate planning lawyer, is almost always needed. See legal malpractice expert witnesses and how much a legal malpractice case is worth.
The estate planning mistakes behind most claims
Estate planning claims tend to cluster around a handful of errors. Each one raises its own proof problems.
| Error | What usually goes wrong | Typical loss |
|---|---|---|
| Execution defects | Wrong number of witnesses, missing signature | Whole will fails |
| Drafting mistakes | Gift worded so it fails or goes to the wrong person | Lost bequest |
| Unfunded trust | Assets never retitled into the trust | Assets pass outside the plan |
| Tax planning errors | Transfers that pull assets back into the taxable estate | Extra estate tax |
| Delay | Client dies before a new will is signed | Old plan controls |
Delay claims are among the hardest. When a client dies before signing a new will, the intended beneficiaries often argue the lawyer took too long. Courts in privity states generally reject those claims outright, and even in states that allow beneficiary suits, proving what the client would have signed and when is difficult. A beneficiary in that situation would likely have to prove both that the client had firmly decided on the new plan and that a reasonably prompt lawyer would have finished it before the client died.
Conflicts also appear often. ABA Model Rule 1.8(c) bars a lawyer from preparing a will or other instrument that gives the lawyer or a person related to the lawyer a substantial gift, unless the recipient is related to the client. A will that breaks that rule deserves a close look. A lawyer who represents one family member while drafting for an elderly parent can have divided loyalties. See conflict of interest and breach of fiduciary duty.
Finally, remember that probate itself can fix some problems. A will contest, a petition to construe an ambiguous gift, or a settlement among heirs may recover part of what was lost. Any recovery there usually reduces what you can seek from the lawyer.
When the clock starts on a will
A will can sit in a drawer for decades before anyone learns it was defective, so the start of the limitations period is a real question. California Code of Civil Procedure § 340.6(b) provides that when a malpractice claim is based on a written instrument whose effective date depends on a future event, the limitations period starts when that event occurs. For a will, that event is usually the death.
Other states handle this differently, and some rely on a discovery rule or a statute of repose that can cut off claims regardless of when the error was found. Check your state on the statute of limitations page, and move quickly once probate reveals a problem.
What to do now
Because the estate stands in the shoes of the client, the executor is usually the person with the right to request the drafting lawyer's file.
- Get copies of the will, trust, and any earlier versions from the probate court or the executor.
- Ask the executor to request the drafting lawyer's file. The estate usually controls it.
- Gather anything in writing showing what the person who died wanted.
- Find out whether your state lets beneficiaries sue or only the estate.
- Note the date the problem surfaced in probate.
If you think a lawyer's drafting mistake cost you an inheritance, a free case review takes about two minutes and can connect you with an independent attorney who handles legal malpractice claims in your state.
Common questions.
Can a beneficiary sue the lawyer who drafted a will?
In most states, yes, if you were an intended beneficiary and the lawyer's negligence defeated the gift. California has allowed these claims since Lucas v. Hamm in 1961. Texas and New York generally do not allow beneficiaries to sue.
Can I sue an estate planning attorney in Texas?
A beneficiary generally cannot, because the Texas Supreme Court held in Barcelo v. Elliott (1996) that the drafting lawyer owes beneficiaries no duty. The estate's personal representative can sue the planner on the estate's behalf under Belt v. Oppenheimer (2006).
Can an executor sue the lawyer who did the estate planning?
Usually yes. Texas and New York high courts have both held that an estate's personal representative can bring a malpractice claim against the decedent's estate planners. This is the main route for recovering extra estate taxes caused by bad planning.
When does the statute of limitations start for a botched will?
It varies by state. In California, a claim based on a document that takes effect on a future event starts running when that event occurs, which for a will is usually the death. Other states use discovery rules or repose periods.
What can I recover if a lawyer's mistake cost me an inheritance?
Usually the amount you would have received if the will or trust had worked, minus what you actually received. If the error caused extra estate tax, the estate may recover that instead.
Sources.
Statutes, court rules, appellate opinions, and bar publications we relied on. See our editorial standards.
- 1.ABA Profile of Legal Malpractice Claims 2020 to 2023, summary, ALPS
- 2.ABA Profile 2020 to 2023 rankings, Minnesota Lawyer
- 3.Lucas v. Hamm, 56 Cal.2d 583 (Cal. 1961), case brief
- 4.Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), opinion PDF
- 5.Belt v. Oppenheimer, Blend, Harrison & Tate, 192 S.W.3d 780 (Tex. 2006), FindLaw
- 6.Estate of Schneider v. Finmann (N.Y. 2010), Cornell LII
- 7.California Code of Civil Procedure § 340.6
- 8.ABA Model Rule of Professional Conduct 1.8
