No – it’s not about sports! It’s PROBATE, ESTATES, WILLS & TRUSTS as the leading area of practice for malpractice claims.  

Answer these questions to avoid joining the hit parade with these Best Practices.  

1. WHO IS MY CLIENT? 

Recognize and Address Conflicts of Interest 

–  Always run conflict checks before undertaking representation.   

• Don’t ignore conflicts that develop during representation.  
• Caution if you undertake representation of clients in the same family. 

–  Clearly identify your client and put it in writing.  

• Guardianship matters can be tricky!  
• Don’t represent the applicant and the ward! 
• Clarify applications for insurance, benefits, and Medicare/Medicaid. 

 If you undertake representation of multiple individuals whose interests in the assets of an estate may eventually diverge, explain potential conflicts of interest, and get the clients’ informed consent to proceed.  

– Do not provide legal advice to others related to the legal matter.   

• Make it clear in every communication with unrepresented individuals related to the legal matter that you do not represent them and encourage them to seek their own independent legal counsel. Confirm this notice in writing. 

– When the representation is complete, send a file closing letter. 

2. WHOSE FILE? 

Document your client file 

Use good intake forms.  

• Ask clients to list by name any individual who may claim an interest in their assets including the names of all children from any relationship at any time in their life. Include names of deceased children in this discussion.  
•  Use an intake form to have clients document their wishes for their estate planning for persons and any entities, including charities.  
•  If there is any question of competency, document that determination. 
• Document decisions made by the client and the circumstances when decisions were made.  

For lawyers who serve as trustees or guardians of an estate, keep accurate records of any distributions of assets or expenses incurred to respond to challenges by beneficiaries. 

3. WHAT’S THAT STATUTE? 

Know the Law – Stay Current on Changes in Law and Local Rules  

• Any lawyer practicing in this area must stay aware of changes in law and adjust the advice to clients accordingly.  
• Know the local rules for the probate court(s) where you practice and check for amendments.  See  Ohio Trial Courts & Local Rules. 

4. WHAT FORMS? 

Use correct Probate forms  

• Uniform Probate Forms 
• Check with local probate court for any required local forms.  

5. WHO’S CHECKING? 

Proof-check documents and dates to avoid simple mistakes  

• Calendar deadlines to allow time to check documents for incorrect calculations, clerical mistakes, and errors.  
• Establish protocols to avoid mistakes: listing “grantor” for “grantee,” providing an inaccurate property description, or failing to timely file a transfer on death affidavit. 

6. WHY NOT? 

Don’t dabble!!!  

• If you are a general practitioner or new lawyer without experience in this area, best practice is to decline the representation or co-counsel with an experienced lawyer.   

See 2024 Ohio Bar Estate Planning, Trust & Probate Law Certified Specialists OR consider becoming an Estate Planning, Probate and Probate Law Specialist 

As always, if you have any questions, please contact us here at OBLIC. 

Gretchen K. Mote, Esq. Director of Loss Prevention Ohio Bar Liability Insurance Co. Direct:  614.572.0620 [email protected]

Merisa K. Bowers, Esq. Loss Prevention Counsel Ohio Bar Liability Insurance Co. Direct:  614.859.2978 [email protected]

 

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.