Q: Is my situation grounds for a lawsuit for legal malpractice? Negligence?
I hired counsel for my mothers probate in 3/2020. I told her if the process risked my mental well-being i didn't want anything to do with it. She advised it would be a simple probate, told me to move into the home to protect it by homestead, told me I would be able to sell the house within 6 months, advised me on debts to clear or not, land to sell, bills to pay.. I gave up my rental, used my own money to pay for funeral expenses, to pay off debts, to pay the legal fees, thinking I would be reimbursed with the sale of the house, then 7 months into the probate, she advised me that she was not aware my parents were divorced when my (step)dad died in 2016 and since I have a (half) brother born to them, I don't have the interest in the estate she thought I did so now it was in my best interest just to walk away ($19k total out of pocket)
I hired counsel, trusting they would look in to technicalities like that as a part of their job. She missed quite a big detail. Is that malpractice?
A:
It may well be. A probate attorney should inquire as to the marital status of the decedent at the outset of an engagement. It’s a very important and basic question like did the decedent have a will. Unless you represented that your mother was “single” and not “divorced”, you may well have a good malpractice case.
Of course, if your out-of-pocket is only $19K, it may not be worthwhile to pursue such a claim.
A: You should consult with another probate attorney to review the case and proceed from there.
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