Blog

On Behalf of Zigray Law Office, LLC | Jul 24, 2024 | Will Contests If you are considering challenging the validity or legality of a will in probate court, it helps to be prepared for any eventuality. Nothing is guaranteed when it comes to legal proceedings; a will contest is no exception. The court may rule against you if you present insufficient evidence or weak arguments, and it’s important to understand the potential consequences of such an outcome. Here is what you need to know. You will bear the legal costs If you lose a will contest, you may be liable for the legal costs and fees associated with the case. The rule of thumb is that the losing party pays the winning party’s court expenses. As such, the court may order you to reimburse the estate’s legal bills besides your attorney fees, which can be a tidy sum. You could lose your inheritance When you contest a will with a no-contest clause and lose, you may have to forfeit part of or all inheritance you were entitled to. No-contest clauses are aimed at discouraging challenges to a will and are enforceable in Ohio. It may strain relationships with loved ones A will contest can create conflict among family members due to the emotional and financial stakes involved during an already difficult period. For starters, no one will inherit anything until the matter is decided, and such cases can be lengthy. Secondly, allegations of fraud or undue influence can create suspicion and distrust, leading to further division. There will be no changes in the distribution Should the court uphold the will, nothing will change and the distribution of assets will proceed as directed by the will. It means your effort, time and resources spent in the contest will go down the drain. Given these undesirable consequences of losing a will contest, it’s imperative to weigh the risks against the benefits beforehand. Seeking legal guidance for a qualified assessment of the strength of your case can also go a long way in making the right call

On Behalf of Zigray Law Office, LLC | Jul 19, 2024 | Will Contests There are only a handful of very specific scenarios wherein a will contest is feasible. Sometimes, the beneficiaries of an estate truly believe that another person coerced or threatened someone into adjusting their estate plan. Other times, issues may arise from outdated documents or wills that include illegal provisions. Will contests can also occur when family members question the mental acuity of the decedent when they drafted their documents. Families and potential beneficiaries of Ohio estates sometimes contest wills by alleging that a testator lacked capacity at the time when they drafted their documents. The burden of proof falls to the plaintiffs in a will contest. How can people prove that a deceased loved one lacked capacity when they created or altered their estate plan documents? Medical records Medical documentation can be a key form of evidence in a capacity-based will contest. Proof of a diagnosis and of symptoms that limited someone’s ability to understand their circumstances is typically necessary. Diagnosis alone is unlikely to be adequate. Occasionally, those experiencing cognitive decline intentionally avoid seeing medical professionals. It may be possible to seek a posthumous evaluation by a mental health professional that can establish a testator likely lacked capacity. Financial records One of the main requirements for testamentary capacity is an understanding of one’s circumstances and resources. If a testator had difficulty paying their bills and managing their assets, that could be an indication that they were not in a mental state to make determinations about their legacy anymore. The more egregious financial oversights were around the time that someone drafted or updated estate planning documents, the greater the likelihood that the courts may agree they lacked an adequate understanding of their circumstances. Witness testimony Many people may notice the confusion and cognitive decline of an individual. Neighbors, care providers and surviving family members may be able to testify about someone’s cognitive state around the time that they drafted documents. An inability to remember their family members or understand their circumstances may have been obvious to those regularly interacting with the decedent. Those with closer relationships with the decedent and medical training are often in the best position to provide compelling testimony in court about a testator’s state. Discussing the reasons that people question a testator’s capacity with a skilled legal team can help them establish if they have grounds for a will contest. Those who can prove that someone couldn’t understand the impact their documents had can potentially convince the courts to set aside those compromised documents.

On Behalf of Zigray Law Office, LLC | Jul 2, 2024 | Breach Of Fiduciary Duty Following the passing of a loved one, estate administration can add a layer of stress during a time of mourning and final goodbyes. While the executor who was named in the will is responsible for overseeing this process, the family can never be too careful. After all, what’s stopping the executor from stealing from the deceased’s estate? Given the substantial authority an executor wields, concerns about potential theft or misappropriation are valid. Thankfully, several legal, procedural and ethical safeguards are in place to help deter such misconduct. Fiduciary duty When an executor takes on the role of overseeing estate administration, they assume a fiduciary duty to the deceased’s estate and the named beneficiaries. This means they have a legal and moral obligation to: Act in good faith Be honest and transparent Maintain loyalty to the estate and its beneficiaries Should the executor breach their fiduciary duty, the family of the deceased have legal recourse, which can include: Pursuing financial penalties upon the executor Removing the executor from their role Filing criminal charges against the executor The family of the deceased can expect the executor to present a comprehensive list of the deceased’s liabilities and assets. The executor should also update the family as they pay off the estate’s debt. This way, the family can be sure that the remaining assets are correctly distributed among the beneficiaries. Probate court supervision Probate court supervision is another deterrent against executor misconduct. The executor is required to present a comprehensive inventory of the estate’s financial details during probate administration. The court’s scrutiny can help to detect and address any discrepancies or suspicious activities. While the risk of theft can never be entirely eliminated, the combined effect of fiduciary duty and court oversight significantly reduces the likelihood of such occurrences. By understanding these safeguards, beneficiaries can confidently approach estate administration and take appropriate action if they suspect any wrongdoing.

On Behalf of Zigray Law Office, LLC | Jun 18, 2024 | Probate Litigation When a family member passes away, settling their estate can bring hidden tensions to the surface and, sometimes, even lead to prolonged legal battles. Known as probate litigations, these disputes can stem from a variety of issues, such as questions about the validity of a will or disagreements among beneficiaries over what they are entitled to. These conflicts can be emotionally draining, financially costly and even cause lasting damage to family relationships. Here are some of the common issues that arise during the probate process. Will contests Losing a loved one is never easy, and the last thing on anyone’s mind is a bitter dispute over their will. When emotions are already running high, disagreements over the will can be a devastating added stress for families. Unfortunately, will contests are a common reality in probate cases. There are many reasons why these disputes arise. For instance, some family members may genuinely believe that their loved one was not of sound mind when they created their will. Others may suspect that someone exerted undue influence over the deceased or even committed outright fraud. Beneficiary disputes These conflicts often involve the deceased’s family members or close friends who are struggling to come to terms with the loss of their loved one. The disagreements typically center around the distribution of assets, the interpretation of the will or the executor’s actions. However, with clear communication and detailed estate planning, these disputes can often be avoided or at least minimized. Executor misconduct As the person responsible for carrying out the deceased’s wishes, the executor plays a vital role in the probate process. They are responsible for managing the estate, paying off debts and distributing assets to the beneficiaries. However, with this great responsibility comes the risk of allegations of misconduct. Beneficiaries may suspect that the executor is mishandling assets, failing to distribute the estate fairly or neglecting their fiduciary duties. When this happens, it can lead to lengthy delays and added legal expenses – not to mention the emotional toll it can take on everyone involved. For many, navigating the probate process can be a daunting task, particularly during times of grief. Knowing and addressing these potential conflicts with the right legal guidance can be a great first step toward a more streamlined and less stressful probate process in the future.

On Behalf of Zigray Law Office, LLC | Jun 11, 2024 | Will Contests Losing a loved one is an emotional time, especially if you were close to them. Learning that they had a will that isn’t what you expected to be can be disheartening. In some cases, you may be concerned that the will you’re being presented with doesn’t actually reflect their wishes. There are instances in which you can contest the will. The reasons for contesting the will and the people who are allowed to contest it are limited. Understanding those points may be beneficial if you’re considering taking this step. Who can challenge a will? Only specific people can challenge a will. These include individuals who are named in the current will or a former one, creditors who have a valid claim against the estate and people who would stand to inherit the assets if the person had died intestate. What circumstances can lead to contesting a will? In order to contest a will, there must be something that would invalidate the will. This includes being able to prove that the decedent wasn’t of sound mind when it was created. Claims of undue influence or financial manipulation can also lead to challenging a will. Another possibility is if the will doesn’t have required elements, such as signatures and witnesses. It’s often difficult to prove these, so it’s best to determine if the evidence is available to show that there’s a valid cause for the challenge before announcing you are going to do it. Challenging a will is a complex undertaking that must be done quickly after the decedent passes away. Seeking assistance with this process may make it easier, especially since you’re going through such an emotional time now.

On Behalf of Zigray Law Office, LLC | May 28, 2024 | Probate Litigation Payable-on-death accounts (PODs) are a popular estate planning tool due to the efficiency with which they can transfer an asset to someone else. By simply designating someone as the beneficiary of a POD, you enable the money in that account to pass to them when you die without having to pass through probate, which might otherwise be costly and cause major delays. PODs work well, provided that an account holder approaches them appropriately and remembers to update them when they no longer represent their wishes. Yet, many people forget to update their PODs. They might, for example, put their spouse as the beneficiary but forget to remove them when they divorce. Or they might make their child the beneficiary, but forget to add the siblings that come along later. What if PODs contradict the terms of a will? People sometimes forget they have already designated someone to receive particular assets via a POD account. They then write something that clashes with this designation in their will, such as “I wish to leave everything I own to my new spouse.” When the person dies, the new spouse might be upset to discover they do not actually get “everything” because some of it is going to the person named on the POD. A POD designation generally supersedes anything written elsewhere. The difficulty of challenging a POD designation is one reason that many people choose to use one. They are not designed to be challenged. Yet, if you believe you have a valid concern, it’s important to get legal help to examine your options.

On Behalf of Zigray Law Office, LLC | May 20, 2024 | Probate Litigation Marriage generally means making a lifetime commitment, which some people insist on seeing through despite unhappiness. Most people divorce when they hold negative feelings toward a spouse for a long time, but not everyone feels comfortable ending a marriage due to their religion, culture or personal beliefs. There are those who remain married despite feeling dissatisfied with their spouses. They may then try to take revenge by disinheriting their spouses in their estate plans. Someone who remained married for years could end up shocked and frightened when reviewing the will drafted by a recently-deceased spouse. Some people review the documents only to discover that their spouse has left them nothing or assets of inconsequential value. As such, it is sometimes possible for a spouse disinherited in Ohio to initiate probate litigation seeking their elective share of their spouse’s estate. What the law allows In Ohio, spouses have a right to inherit from each other’s estates if they die without an estate plan. When there are children of the deceased spouse who aren’t children of the surviving spouse, the law has several rules for how much of the estate may go to the surviving spouse. The surviving spouse receives the first $20,000 of the estate and either a half or a third of its remaining value depending on the parentage situation. If the surviving spouse is also a parent of one or more of the decedent’s children, then their share of the estate may increase to $60,000 plus a third of the remainder. Those same rules can theoretically apply in a scenario where a spouse receives nothing or a disproportionately small share of the estate. If a will only grants a surviving spouse a used vehicle or other low-value resources, an Ohio spouse can potentially assert their right to an elective share of the estate. The probate courts can grant a surviving spouse more of an estate if the inheritance allocated to them in the will is less than what they might receive during intestate proceedings. Contesting a will can be a challenging process, especially in a blended family situation where stepchildren may have intense emotions about this course of action. Disinherited or disappointed spouses may need to learn more about their rights to determine if going to court is a wise choice after a spouse’s death in Ohio, as every case is different.

On Behalf of Zigray Law Office, LLC | Jan 29, 2014 | Probate Litigation Individuals who establish a trust as part of their estate plan must appoint one or more trustees to manage assets held in that trust. Depending on the type of trust and amount of assets, duties associated with managing a trust can become a full-time job. Given the time commitment often needed to accomplish a trust’s goals, some individuals provide for a trustee’s annual salary. A lawsuit related to the estate of late pop artist Robert Rauschenberg is set to go to trial in late March. The lawsuit was filed by three trustees who Rauschenberg appointed to manage a trust that’s now estimated to be worth $2 billion. At issue is the $60 million of the trust’s assets the trustees contend should be provided as compensation for their services. An attorney hired by the trust’s beneficiary, the Robert Rauschenberg Foundation, argues the trustees’ request for $60 million in compensation is “not reasonable”. The Robert Rauschenberg Foundation’s mission is to manage the late artist’s works and also provide financial support for charities and new artists. The $60 million sought by the trustees would otherwise be used to further the foundation’s mission. An attorney for the trustees argues the three men have worked diligently and tirelessly to grow the trust’s assets by “reintroducing Rauschenberg’s artwork to the market”. The late artist did not provide for any trustee fee agreement nor have the trustees kept track of their efforts or time spent managing the trust since Rauschenberg’s death in 2008. This case is an example of the type of unforeseen estate disputes that can arise in the wake of a loved one’s death. Ohio residents who have questions or concerns about a loved one’s will or other estate matter would be wise to consult with an attorney who handles estate planning and probate litigation cases. Source: Telegram & Gazette, “ Late pop artist Robert Rauschenberg’s trustees seeking $60 million in fees,” Tamara Lush, Jan. 6, 2014

On Behalf of Zigray Law Office, LLC | May 8, 2024 | Will Contests The executor of a will has an important role. They are tasked with addressing matters relating to the estate upon the testator’s death. The duties of an executor are fiduciary in nature. This means that they must always act in the best interests of the estate and not out of self-interest. Most executors take this role seriously, and they uphold their fiduciary duties. Nonetheless, there are occasions when this is not the case. What are some examples of poor executor conduct? 1. Misusing assets A testator will typically provide instructions on how the executor should deal with assets such as real estate. For example, they may pass a house on to a beneficiary in the will. The executor must uphold such wishes. They breach their duties if not. For instance, if an executor takes ownership of the property, but allows the beneficiary to stay there, this is still a breach of duty as it does not follow the precise instructions of the will. 2. Biased conduct An executor is also expected not to show favoritism. They should treat beneficiaries in an even-handed manner. If an executor fails to follow the instructions in a will by favoring one beneficiary over the other, then this is a breach of their duties. 3. Failing to administer appropriately The assets from an estate must be administered appropriately. For example, not only should assets be passed on to beneficiaries, but creditors and taxes must also be paid. It falls on the executor to meet these obligations and ensure that all financial obligations from the estate are covered. If you believe that an executor has acted inappropriately, then it may be possible to have them removed. Seeking legal guidance on the matter will provide you with more relevant information.

On Behalf of Zigray Law Office, LLC | Apr 23, 2024 | Breach Of Fiduciary Duty In many situations involving a person’s estate, you may hear the term “fiduciary duty.” This is a duty that someone may have regarding another individual or a portion of their estate. Essentially, the fiduciary has a legal responsibility that they are supposed to uphold For example, perhaps two parents made a trust and put money in it for their children. They then named a trustee. After the parents pass away, the trustee has a fiduciary duty. They are supposed to administer that trust and so they have the right to handle and distribute the assets in the trust in accordance with the directions that were provided. No one else has this duty, so they are not responsible for how the money is distributed and they are not even authorized to access the account. Why could this be a problem? This can create disputes when the fiduciary is accused of breaching this duty. For example, say that the trustee begins to remove money from the account to use for their own purposes. They were supposed to use the money to benefit the children, perhaps by paying for college tuition or something of this nature. But they are breaching that duty by using the money for personal gain. But it doesn’t necessarily have to be that drastic. If the beneficiary simply wanted a distribution from the trust and was denied when they felt that the reason for the distribution was valid, then they may claim that the trustee breached their fiduciary duty by refusing that distribution. In other words, these situations can get to be very complex from a legal standpoint. It is important for those who are involved to understand exactly what steps they can take to find a resolution.

On Behalf of Zigray Law Office, LLC | Apr 14, 2024 | Probate Litigation The needs of modern estate planning efforts have expanded beyond “traditional” physical assets and financial accounts to include a range of digital property and investments. As such, social media accounts, digital wallets, online businesses and virtual assets now all demand attention during the estate planning process. However, partially due to the speed with which the estate planning landscape has changed over the past 20 years or so, many individuals still overlook these digital assets when planning their estates, which can lead to complex probate litigation concerns after they pass away. What’s the big deal? The primary risk of inadequate digital estate planning is that digital assets may not be properly accounted for in a person’s will or estate plan. This oversight can lead to uncertainty and disputes among heirs or beneficiaries about who has the right to access or control these digital assets. Unlike traditional assets, digital assets often require specific usernames, passwords and even encryption keys to access. Without clear directions and lawful access protocols, these assets can become effectively inaccessible, or worse, subject to unauthorized access and misuse. Moreover, the laws governing digital assets are still evolving. Many jurisdictions lack clear legal frameworks addressing the inheritance of digital content, further complicating the administration of these assets during probate. This ambiguity can lead to significant legal challenges. For instance, if a deceased person owned an online business or held substantial digital currency, the absence of explicit instructions for these assets can trigger disputes among beneficiaries, potentially leading to costly and prolonged litigation. Probate litigation concerning digital assets can be particularly contentious because of the high value and unique nature of these assets. For example, a dispute over the control of a popular social media profile or a profitable blog can raise complex issues about intellectual property rights and the commercial value of digital content. Additionally, if a decedent used online platforms for significant financial transactions or held investments in digital currencies, the stakes are even higher, and the probate process can become a battleground for those claiming a right to these digital fortunes. To mitigate the risk of probate litigation, estate planning should include detailed instructions about each digital asset, designate digital executors and work to ensure that all legal guidelines are followed to grant those individuals proper access and control rights.

On Behalf of Zigray Law Office, LLC | Mar 29, 2024 | Probate Litigation The process of probate can be a lengthy and costly legal procedure that can tie up assets and delay the distribution of an estate to beneficiaries. While it is sometimes a necessary inconvenience, you may not want to have your estate go through probate due to privacy concerns, the desire for a more efficient transfer of assets to your heirs or to minimize the potential for family disputes over inheritance. There are several ways you can proactively plan your estate to avoid probate and to better ensure a smooth transfer of assets directly to your beneficiaries. Joint ownership Joint ownership is one effective way of avoiding probate and facilitating the direct transfer of assets. By holding property jointly with rights of survivorship such as joint tenancy with right of survivorship or tenancy by the entirety for married couples, ownership automatically passes to the surviving joint owner(s) upon the death of one owner. Payable-on-death-accounts These are accounts that allow you to designate beneficiaries who will receive the funds directly upon your death without the need for probate. Common types of payable-on-death (POD) accounts include bank accounts, certificates of deposit (CDs) and brokerage accounts. Establish a living trust A living trust allows you to transfer ownership of assets into the trust during your lifetime, with detailed instructions on how those assets should be managed and distributed after your death. When you place assets in a revocable living trust, you retain control over them while alive but upon your death or incapacitation, the trust assets can pass directly to the beneficiaries named in the trust document, bypassing probate. Gifting assets You can also proactively transfer assets during your lifetime through gifting. By gifting assets to your intended beneficiaries before your death, you can reduce the size of your estate subject to probate. This can be particularly useful for assets with sentimental value or those you anticipate causing disputes among heirs. Regardless of which option or options sound intriguing, you should strongly consider getting legal guidance to help ensure that the estate planning strategies you choose align with your specific circumstances and goals, and that they comply with relevant laws and regulations.