The United States is currently experiencing one of the largest transfers of wealth in history. As aging baby boomers pass on their wealth and transition the ownership of their businesses, trust and estate attorneys are at the center of a growing number of legal disputes.
This unprecedented volume of estate planning and business succession transactions has led to a notable increase in legal malpractice claims against estate attorneys. In many cases, family members or other interested parties disagree over the distribution of assets and blame the attorney when expectations aren’t met.
Whether these claims are rooted in miscommunication, perceived bias, or more serious allegations like elder abuse or fiduciary breaches, they represent a growing risk for law firms and solo practitioners involved in trusts and estates.
Common Legal Malpractice Claims in Trust & Estate Practice
Below are some of the frequent sources of claims filed against trust and estate lawyers today. Understanding these issues can help attorneys proactively manage risk and ensure they have the right malpractice insurance coverage in place.
1. Heir Disputes That Erupt After the Fact
Issue: In estate planning and trust administration, things may appear calm and collaborative, until they’re not. It’s common for disputes to arise among heirs or beneficiaries after the fact, even when everyone initially seemed to agree.
Risk: Attorneys may be sued by multiple parties, especially if the dispute escalates and allegations emerge of biased or improper handling.
Suggestion: It’s a smart practice for the Trustee or Executor to seek court approval for major actions, even when all parties appear aligned. This creates a clear legal record and reduces the attorney’s exposure to future claims.
2. Elder Abuse or Fiduciary Misconduct Allegations
Issue: A growing number of malpractice claims involve elder abuse accusations, particularly when attorneys serve in a fiduciary capacity. Claims often cite “aiding and abetting” theories, where the lawyer is alleged to have enabled questionable care arrangements or financial decisions.
Risk: These claims can be especially damaging to a firm’s reputation and may not be covered under general policies.
Suggestion: Attorneys should maintain transparent and documented communication with elderly clients, especially if the client appears vulnerable or isolated. This includes:
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Keeping detailed notes of all meetings
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Confirming advice in writing
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Using notarized documents where appropriate
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Making sure the client understands decisions clearly
3. Conflict of Interest Between Family Members
Issue: Perceived conflicts of interest are a major source of legal malpractice claims. Attorneys may be accused of divided loyalty if they’re seen to favor one family member over another, even unintentionally.
Risk: This is especially problematic when an attorney represents multiple family members or communicates with heirs who stand to benefit at the expense of others.
Suggestion: When possible, avoid communicating with children or beneficiaries directly—especially if they are not your client. Keep communication focused on the personal representative of the estate and minimize involvement of those with conflicting interests. Also, be cautious when agreeing to serve as Trustee or Executor; these roles can complicate attorney-client boundaries and increase liability exposure.
Your Best Defense: Comprehensive Legal Malpractice Coverage
Due to the surge in litigation and risk, some insurers have reduced or eliminated coverage for trust and estate attorneys. That makes it even more critical to work with an experienced insurance broker who understands the legal malpractice insurance marketplace and can guide you toward appropriate protection.
At PSA, we partner with law firms throughout the Mid-Atlantic to secure custom legal malpractice insurance solutions that account for your unique exposure, especially if you handle estates, trusts, fiduciary matters, or elderly clients.
Contact PSA Today
If you’re unsure whether your current coverage meets the demands of today’s trust and estate landscape, don’t wait until a claim hits. Reach out to PSA for a consultation. We’ll help assess your risks and guide you to the legal malpractice policy that gives you confidence and protection.
In Conclusion
The ongoing wealth transfer in the U.S. presents opportunities, but also real risks, for trust and estate law firms. With litigation on the rise, especially involving heir disputes, elder abuse claims, and fiduciary misconduct allegations, it’s essential to prepare your practice with both preventative strategies and strong malpractice insurance.
PSA is here to help. With deep experience in the legal sector and access to top-tier carriers, we’ll ensure your firm is protected against the unexpected.
