Before a lawyer can help you plan your estate, he or she must have information about your family situation and your wishes. It is also essential to have details about your assets, as a recent Washington case shows.

James M. Driscoll, a lawyer practicing in Seattle, primarily works as a hearing officer in zoning matters for a number of Washington cities and counties. But when the family of a deceased woman asked him to handle the probate of her estate, Mr. Driscoll agreed to the representation. He also counseled the decedent’s mother and sister that they should both see to their own estate plans.

One of Mr. Driscoll’s clients was 86-year-old Mary Bracelin, who had never before prepared any estate plan. Mr. Driscoll explained to her that she should sign a will, but she flatly refused to do so. After several visits lawyer and client agreed that she would sign a revocable living trust instead.

Ms. Bracelin explained that she wanted to disinherit some of her heirs, and to put others’ shares in trust rather than having payment made outright at her death. The living trust Mr. Driscoll ultimately prepared took those wishes into account.

Most often a living trust is accompanied by a pour-over will to sweep any remaining assets into the trust on the signer’s death. To the extent that the purpose of the trust is to avoid probate, it is also important to transfer assets into the trust’s name within a short time after it is executed.

Apparently because of Ms. Bracelin’s strong aversion to signing any will, Mr. Driscoll did not prepare a pour-over will. He did give her a worksheet (what he called "Attachment A") to fill out listing her assets, but he did not make sure she completed it, did not speak to her son (who had been named as her agent in a power of attorney prepared at the same time) and did not prepare documents to transfer assets to the trust.

When Ms. Bracelin died two years later, she still had not signed a will or transferred assets to the trust. As a result her entire estate passed by "intestate succession" to her children and grandchildren, and not according to the terms of the trust. Her estate and some of the beneficiaries sued Mr. Driscoll for professional negligence.

Although the court initially dismissed the lawsuit, the Washington Court of Appeals ruled that it should continue. The issue now will be whether Mr. Driscoll adequately explained the importance of a pour-over will and retitling of assets. At least one estate planning expert has already given his opinion that failure to prepare a pour-over will fell below the standard of care, and that even if the "Attachment A" had been completed it would have been inadequate to transfer assets to the trust. Moen v. Driscoll, July 26, 2004. 

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