Legal Question in Wills and Trusts in California
My Mother past away on March 18, 2010. She had seen a lawyer in 2005 for her trust, thinking that everything was taken care of for her kids. Due to family problem, one brother was left nothing. It clearly states that in the trust. Mom had a large Smith-Barney account which originally was to be split four ways, until this problem happen, and after talking with the attoney, she obtained a change of beneficiary form from Smith Barney and listed my sister, my other brother, and myself. From March 2005 until present, her Smith Barney statements came listed only our 3 names as beneficiaries. After her dead and we met with the Attoney, we met with the Mom's finacial advisor only to be told we split one account 4 ways, because my "deadbeat" brother's name is listed on this account. I've found the form where Mom removed my brother's name. I've produce this to Smith Barney, but was told this didn't remove my brother from the Metlife account, the largest account, that would have taken another form. Of course I've no way of knowing if they told Mom this, and with my brother's name not listed on her account statements, I can only assume, Mom thought like I thought, my brother had been removed completely. When I confronted the agent about this matter, he strongly states my Mom didn't fill out the right form to remove my brother's name from that particular account. I feel that this was Smith Barney's fault. The agent does not state if Mom was informed of this at the time she was given the change form. Mom's lawyer said we would probably lose more money on legal fees, but she would "swear on a stack of bibles" my Mom meant to leave my brother nothing. Our next problem is Mom's lawyer has cancer, and really is not up for a court battle. We really don't want that either, but we all feel like the financial advisor is at fault. Are we just doomed to allow my dirt bag brother money because this agent didn't do his job? Or would that just be another legal battle?
2 Answers from Attorneys
It is a legal battle any way you slice it. You pretty clearly have a professional negligence claim against the financial advisor. You may also have some way to equitably modify the beneficiary designation. Without knowing how much is at stake, I can't advise you on whether or not the cost of chasing this would exceed the amount in question.
It sounds like you are not going to be able to stop the distribution to the brother who was supposed to be disinherited (but any attorney would need to revew the specific documents in order to give you legal advice). So, by suing the financial advisor for malpractice you re trying to receive additional money to mkae up for the amount you are not receiving because of the beneficiary change issue on the Met Life account. Litigation is expensive and when you take that into affect you can win but not net much additional money for all the time and trouble. I don't know how much is at stake, but unless your share is over $200,000 it might not be owrth the cost of litigation. You should meet with an attorney though who can review your documents and give you more specific advice.
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