Is It Malpractice To Leave a Trust Unfunded?
Michael Bonasera asks a couple of interestin questions at his Ohio Trust & Estate Blog:
After you have done a revocable living trust for client, is there a requirement (implicit or otherwise) on the lawyer to insure that the trust is funded or mechanisms are in place to allow for it to be funded? Further, if the trust is not funded when the client dies (leading to a larger probate estate than would have otherwise been necessary if the trust had been funded), is the attorney who drafted the trust liable for malpractice?
Michael's questions touch on what, to me, is a classic question of whether the attorney is responsible for doing more than providing his or her best advice to a client. In my mind, the answers to both of Michael's questions are no, assuming that the attorney has done his or her very best to make it very clear what needs to be done to fund the trust, offers to either provide whatever assiatnce is necessary or provides referrals to other professionals who can provide that assistance, and clearly explians to the client, and receives acknowledgment from the client that the client understands, what needs to be done and the conseqauences of not doing it. So I guess that's a no, probably. What do you think?
