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Maumee Probate Litigation Blog

Not just anyone can challenge a will

Challenging a will is necessary when you have a valid reason to believe that the will isn't correct. A previous blog post discussed some of the reasons why a person might challenge a will. On top of having a valid reason, you must have a status that allows you to challenge.

There are a few different points that you must consider when you are determining if you can challenge a will.

The probate process without a will

While most people understand the importance of creating an estate plan, not everyone goes through this process. For this reason, it's possible that people could pass on before they create wills.

When a person passes on without a will (intestate), property is distributed based on the state's intestate succession laws.

Determining lack of capacity when disputing a will

When there is a dispute over a person's will, one of the questions may be if he or she had the capacity to make decisions or changes to that document. It's not always easy to challenge a will, but if a person can prove that a lack of capacity played a role in a person's decision making before death, then he or she could have a solid case in court.

When determining if a loved one lacked capacity, it's vital to look into medical records. Typically, functional assessments look into a patient's needs along with his or her physical and mental health. As people age, it's common to see them struggle with Alzheimer's disease or other forms of dementia.

Top reasons to challenge a will

Typically, all but one percent of wills go through the probate process without a problem. This is because courts generally take the stance that a will is in the decedent's voice and conveys his or her final wishes. And, since that individual can no longer speak about those wishes, Ohio courts will usually stand by the document. This can make challenging a will very difficult.

If you plan to challenge a loved one's will, for instance your father's, then certain grounds must exist. In other words, you must have a valid reason to bringing forth a challenge. To find out some of the most common reasons for challenging a will, read further.

Undue influence: Don't let it cost you an inheritance

For as long as you can remember, your father always told you that you'd inherit the estate. You're an only child, and you have been there for him during his time in need.

When your father passed away, you prepared to take over the estate and to take care of business. You were shocked, and rightly so, when you discovered you hadn't inherited anything. Instead, your father had willed away the estate to someone who cared for him in the nursing home. You suspect that something isn't right, and you may be correct. Undue influence on a person can result in changes to wills or trusts, and it can make it hard for you to inherit what is rightfully yours. Fortunately, you can contest the will if you believe that your father was influenced to change it prior to his death.

These 3 tips help you find hidden or missing assets

One of the things that can make moving on after a loved one's death difficult is being unable to locate his or her assets. When you can't locate assets, it could make it hard to finalize the estate plans. It could also mean that someone has taken advantage of your loved one, which is something you want to clear up right away.

How can you locate a decedent's hidden or missing assets? There are a few different things you can try including looking at your loved one's personal paperwork, safes and other potential hiding spots.

Take these steps to avoid an inheritance dispute

The last thing anyone wants to see happen after your death is an inheritance dispute. You want to leave behind something for your beneficiaries, and having them fight among themselves is not your idea of how your family should treat one another.

There are a couple things you can do to help your family avoid disputes. With the help of your attorney, you can make sure there's as little risk of a dispute as possible, so your family can receive what you wanted to gift to them and focus more on their emotional healing.

Breaching fiduciary duty: Beneficiaries have a right to act

You create a trust knowing that someone has to carry out the duties of the trust after you pass away. That individual has a fiduciary duty to you, your beneficiaries and the trust itself. You expect that individual to make good decisions and to engage in acts that grow the trust or dole it out fairly.

If a trustee does not work in the beneficiaries' best interests, it's said that the individual is in breach of his or her fiduciary duties. If a person breaches his or her duties, that individual could face a lawsuit from the parties affected by the breach.

Determining a lack of capacity in estate disputes

Your father got older and had to move into a nursing home. You already knew he had a will, and he had set up a trust for your children, his grandchildren. You thought everything was ready and prepared, but when your father passed away, you were shocked to find that the trust had been altered and placed into the name of a worker at the facility where he was treated.

How could that happen? Your father had dementia, and there is no way he had the mental capacity needed to make that decision. What can you do?

Was a financial claim filed against your loved one's estate?

When your loved one dies, his or her estate will go through the probate process. If there's a will on file, after probate, the executor of the estate will distribute the assets according to the distribution plan laid out in the will. If there's no will on file, the assets will be divided according to Ohio intestacy laws.

During probate, creditors to whom the deceased owed money may file claims against the estate for money owed. Let's say a lender comes forward and claims your deceased father owed him or her $200,000 related to a business deal. Whether the estate pays the claim depends on its viability.

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