Attorney Fails to Protect Estate Beneficiaries Mishandles Probate Case; Heirs Bring Action Against Attorney for Malpractice; Settlement Reached Prior to Trial

Legal MalpracticeWe represented one of the out-of-state heirs of a deceased Tucson resident (the “decedent”) in a claim against the estate’s former lawyer for malpractice. The decedent had died without a will in 1995. The attorney petitioned the superior court to have a friend of the decedent appointed as personal representative of the estate without bond, despite the fact that there were lawful heirs who had priority for appointment. The attorney did not notify the heirs of the probate proceedings, nor did he seek their approval in having a non-relative of the decedent appointed to administer the estate. The attorney also failed to inform the court that these heirs survived the decedent. Based on the untrue and incorrect statements made in the petition prepared by the attorney, the court appointed the non-relative as the personal representative of the estate and waived the requirement of a bond.

The attorney represented the illegitimate personal representative for over five years, during which time the personal representative “purchased” the decedent’s house from the estate for $36,000 less than the appraised value, and obtained a loan against the property for $17,000 more than the purchase price. This transaction was without the heirs’ knowledge or consent, and without court approval. Further, during this period, the attorney collected fees from the estate in excess of $10,000. Upon discovery of these events, our client, one of the lawful heirs, petitioned the court to have the personal representative removed and to recover damages on behalf of the estate against the attorney and the credit union that had granted the suspect loan to the personal representative.

Prior to trial, the attorney agreed to pay to the estate the sum of $58,000. The credit union agreed to pay to the estate the sum of $11,500, and to forgive the sum of $5,430 under the note and deed of trust on the property. The former personal representative filed bankruptcy and no action could be maintained against him. Total settlement: $74,930.

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