Avoiding the Estate Planning "Blue Screen of Death" -- Common Non-Tax Errors and How to Prevent Them

Abstract

This article highlights common non-tax errors made by attorneys in the estate planning context. Professor Beyer posits that by using common sense, vigilance, and being aware of the troublesome areas of estate planning discussed in the article, attorneys can avoid the possible consequences of drafting a flawed estate plan. In the Introduction and Conclusion, Beyer analogizes a malpractice action in the estate planning context with the dreaded “Blue Screen of Death,” where a computer crashes and loses all unsaved data. Beyer points out that while the “Blue Screen of Death” is virtually unpreventable, an attorney has the ability to prevent the likelihood of a malpractice action in the estate planning context. Section II discusses estate planners’ potential liability for malpractice. Beyer explains that while the common law required privity for malpractice actions by beneficiaries, fewer than ten states, Texas being one of them, retain the privity requirement in estate planning cases. Sections III through VII highlight common non-tax related mistakes in estate planning including poor client interactions, errors in will drafting and will execution, and errors in trust drafting. Section VIII analyzes the risky but common practice of attorneys preparing estate plans for both spouses.