If I am the executor for the estate for my late aunt, can I sue the probate attorney for losses incurred with their failure to timely file a tax form?

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If I am the executor for the estate for my late aunt, can I sue the probate attorney for losses incurred with their failure to timely file a tax form?

Upon her death I contacted the attorney who prepared her Will and we filed the estate with probate court within a couple months. However, he failed to file the Inheritance Tax Return within the recommended 9 months and after 12 months the attorney contacted my accountant and delegated the task to him. This delay, resulted in a significant penalty on my tax obligation. Do I have a legal/ethical stance to ask the attorney to reimburse me for the tax penalty?

Asked on January 21, 2016 under Estate Planning, Kentucky

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Although you can ask the attorney to reimburse you for the tax penalty, the following alternatives should also be considered:
You can sue the attorney for malpractice which is negligence.  Negligence is the failure to excercise due care (that degree of care that a reasonable probate attorney would have exercised under the same or similar circumstances to prevent foreseeable harm).  Prior to filing a lawsuit for negligence, it may be possible to settle the case with the attorney's malpractice insurance carrier.  If the case is settled, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file your lawsuit for negligence.
If the case is NOT settled, your lawsuit for negligence must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.
Another course of action is to contact the State Bar and file a complaint against the attorney. A call from the State Bar may prompt the attorney to reimburse you for the tax liability without  you even filing a lawsuit.  Try the State Bar first before filing your lawsuit as it may resolve the issue.
 


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