Legal Question in Wills and Trusts in California
A few years ago my partner had an attorney modify the family trust. The original trust was written before his father passed away and this was supposed be a revision. Now that my partner's mother is incapacitated he is trying to settler her affairs. He cannot afford the payments on the family home which was supposed to be a part of the trust, so he listed it for sale with the intent on purchasing a new, smaller home for the trust. Now that the original home is in escrow he is having a great of trouble with the title, and the trust in general. The attorney who wrote the trust filed a Grant Deed stating that the mother and son are Joint Tenants in Trust, not a Trust Transfer deed in the name of the trust with the son as trustee. Three title companies and the escrow company have all said this is incorrect and the home is NOT part of the trust, even though he wrote it into his original trust document.
A real estate attorney looked at all the paperwork and said the trust is a seven page piece of garbage that protects nothing. When we have tried to ask the attorney who wrote the "trust" about the title problems he tells us they are all idiots and everything is in the trust. Today he admitted he is a litigation lawyer. We stand to lose everything the trust was set up to at this point, due to Medicaid and because of a child support judgement against my partner. He is making his payments, but fell behind, so when escrow closes his mother's equity will go to paying his support first. The we were told she will probably lose her Medicaid because she will have sold the property. There is also the matter of where this woman is going to live once the house is sold. She is 87 and needs round the clock care. The sale needs to be completed because the mortgage payments cant be met and she is facing foreclosure. The option is to lose the home altogether or sell and downsize. But, as the trust and deed are written, her home isn't protected.
Do we have any recourse against an attorney who not only failed to correctly write the trust and incorrectly filed the new deed, but now refuses to advise or assist based on the fact that he thinks he was right and everyone else�title, escrow, 2nd attorney, bank and the county�are all wrong? The trust was supposed to protect her from this kind of situation, and the money the attorney accepted as payment to provide a worthless piece of paper could at least have been used towards her care.
What are the options?
2 Answers from Attorneys
You need to talk to a lawyer who specializes in handling legal malpractice claims. A deed that places property in joint tenancy is not the same as a deed to a trustee that funds a trust.
Malpractice attorneys are the answer. You can also look on the State Bar website under the attorney's name and often though not always, there usual area of practice is listed. It may not make a difference but if he was not an estate planning attorney, he had a duty to either get up to speed or associate in an attorney who knew what s/he was doing. It sounds like he did neither.
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