Living Trust Question?

Question

My father just passed away. He had an attorney make a living trust for him. Now that he is gone I can't get money out of his checking account to pay my mother's mortage because the checking account was never added to the trust. The bank stated they will freez the account for 45 days. Also the attorney never had my dad noterize the deed for his share of a property he owned. Now the attorney wants more money to "make things right". Is it the attorney's responsibility to get all the trust "funded"? I can't believe an attorney left it up to an 87 year old man to get documents noterized by himself.

Answer 1

You certainly have a malpractice complaint against the lawyer. Whether you could collect from his E&O carrier is unclear, but it is outrageous negligence on his part. And yet, such incompetence is not at all uncommon.

I assume you are in a state of the USA. The mortgagee ought to be oooperative. If the estate is solvent, they will be paid and perhaps they willl make your mother a small loan to cover a few months' payments.

The bank cannot freeze the account if you get a court order from probate court. I have often obtained letters of administration or letters testamentary within a week of two; but it all depends on what state you are in. California, for example -- where living trusts are very common for just that reason -- is a nightmare for probate.

Answer 2

First of all, the house won't be foreclosed on in a mere 45 days.

Second, the attorney's job is to prepare documents, but if the client doesn't want to come to the office to execute them, it's not the attorney's responsibility to chase the client and force him to sign anything.

Third, the attorney is entitled to expect to be paid for settling the estate. No matter how perfect the estate planning is, there's work to be done post-mortem.

Get out of the mind-set that it's all automatic, nothing is. Your father thinking that way is probably what got the estate into the problems you have described. Go talk to the attorney, or better yet, LISTEN. You will be told what needs to be done, and what the attorney will charge for the part the attorney will do, and what parts YOU or your mother have to do.

Here's a couple of hints: where's the will, was the house in "survivorship", and was there any insurance?