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On Behalf of Zigray Law Office, LLC | Feb 22, 2016 | Probate Litigation Does an estate lawyer’s services end when his or her client has drawn up a comprehensive estate plan? Given the risk of estate disputes or even lawsuits against executors, that answer is often no. An executor named in a will is an individual entrusted with a fiduciary duty. Readers likely understand the task of distributing bequests to named beneficiaries in accordance with the will. However, an executor must attend to a whole host of other issues, some of which might land him or her into hot legal waters. For example, an executor must also pay bills of the estate. It may seem like common sense to pay credit card or other bills when invoices arrive in the mail. However, as a law firm that focuses on probate and estate administration, we try to educate our clients about classes of estate debt. Not all debts are equal. A federal tax liability, for example, often takes priority over other unsecured debt. If an executor were to deplete estate reserves by paying off other lower-class creditor claims before the taxes, he or she could be facing legal liability from the IRS. Yet tax authorities are not the only ones to whom an executor may be responsible. He or she also has a fiduciary duty to the beneficiaries of the estate. That duty includes conserving estate assets, but not necessarily increasing them. For example, an executor may be tempted to invest cash assets in the hopes of obtaining a higher return. Yet if the market plunges, he or she could be deemed to have breached that fiduciary duty by mishandling estate assets. Source: Wall Street Journal, “T he Biggest Mistake Executors Make,” Veronica Dagher, Jan. 31, 2016

On Behalf of Zigray Law Office, LLC | Feb 10, 2016 | Probate Litigation A few years ago, a Florida millionaire disappeared. He had been depressed, news reports said, and he had been mired in litigation against his uncle and former business partner. There were rumors of marital trouble. Still, it came as a surprise to his family when he went missing on June 19, 2012. Guma Aguiar climbed into his boat that evening and sped out to sea. Witnesses said he was going fast. They also said the weather was closing in, and the sea was choppy. Six hours later, his boat was washed up on a beach a few miles away — keys in the ignition, navigation lights on but engines not on and Aguiar nowhere to be found. The search was called off after two days. Within days of his disappearance, his wife and his mother squared off over control of the estate. The court finally appointed conservators. In both Florida and Ohio, if a person disappears as Aguiar did, he is not presumed dead until the fifth anniversary of his disappearance. Of course, if evidence turns up that he died before the five years elapsed, that date would be recorded as his official date of death. The law is not without compassion. One or more family members are allowed to petition the court to have the missing person declared dead during that five-year period. They must present sufficient evidence to support the petition — that is, they must prove to the court that their belief that their loved one is, in fact, deceased is based on more than a hunch. This is what Aguiar’s wife and mother did about a year ago. They set aside their differences and asked the court to declare Aguiar dead. When the court consented, the two women reportedly resumed their battle for control of the man’s fortune. Under the circumstances, their efforts to move on with their lives — and the lives of Aguiar’s four young children — are understandable. Without the death certificate, Aguiar’s will (assuming he has one) is just a piece of paper. Without the death certificate, any life insurance benefits are off the table, and someone has to pay the premiums. His estate and his families lives are in limbo. In the months following his disappearance, much of the litigation he was involved in was settled. His wife sold off some big-ticket items and put their mansion on the market. The litigation was expensive, though, and the conservators’ fees must have been adding up, too. The Florida court’s decision resolves many issues, but it does not answer every question about Aguiar’s assets. He owned several properties in Israel, and the Israeli court is under no obligation to accept the Florida’ court’s declaration. Those properties are at the center of a dispute among his survivors, including his sisters. Sources: Huffington Post, “Guma Aguiar: Fate of Missing Fort Lauderdale Millionaire Still A Mystery One Year Later,” Linda Trischitta, Aug. 18, 2013 Sun-Sentinel, “ Broward judge declares missing millionaire dead,” Linda Trischitta, Jan. 29, 201

On Behalf of Zigray Law Office, LLC | Jan 25, 2016 | Probate Litigation One of the most flexible tools in estate planning is a trust. A trust can protect assets from creditors and estate taxes. A trust can protect the decedent’s privacy. A trust can make sure someone who cannot take care of himself has the means necessary to maintain a decent standard of living. A trust may not be able to make you a grilled cheese, but it can make sure someone makes it for you. This flexibility in purpose makes it all the more important that a trust be drafted well, that it follow accepted practices and specific Ohio laws. For example, it may look as if all the work happens up front for the grantor (the person who establishes the trust). Assets are gathered, a trustee is identified, beneficiaries are named and everything is written down and signed. It is easy to assume that, once the trust is in place, the grantor can just sit back and watch. That is only true of an irrevocable trust, though. Once that trust is executed, it cannot be changed. A revocable trust, however, is a different thing altogether. A trust is technically a document that authorizes a person or entity (the trustee) to hold onto and to manage a grantor’s assets for the benefit of another (the beneficiary). The grantor may be the trustee, and the grantor may be the beneficiary. The key to the trust is that the assets are held and distributed according to the terms of the trust. Ohio law dictates that someone who is able to make a will is also able to establish a trust. That means the grantor must be at least 18 years old, of sound mind and memory and not the victim of undue influence. If all of these conditions are met, the grantor is said to have the capacity to establish the trust. An irrevocable trust cannot be altered. Once it is executed, the grantor cannot change the terms of the trust or withdraw funds at will. The trustee is bound by the trust agreement alone. Capacity, then, is only important at the beginning of the process. A revocable trust, however, is not permanent. The grantor is allowed to amend the terms, even to dissolve a revocable trust — but only if the grantor has capacity at the time of the amendment. Because the grantor has the sole power to amend the trust, upon his death the trust becomes irrevocable. Why choose revocable over irrevocable? That’s a decision the grantor should make with his estate planning attorney. Source: Ohio Elder Law, Chapter 11: Trusts, Margaret H. Kreiner and Bradford S. Carlton, September 2014 via Westlaw

On Behalf of Zigray Law Office, LLC | Dec 22, 2015 | Probate Litigation With the annual bombardment of “10 best” lists and the onslaught of the awards season, we thought it was time to come up with our own award. There is no cash prize, nor will anyone win tickets to a Bengals game or to the Hawaii Bowl to see the Bearcats play. The reward is a better understanding of a prickly probate issue and, we hope, a greater appreciation for just how compelling probate law can be. And so, we are happy to award this year’s Most Interesting Probate Story to the efforts of Jim Thorpe’s sons to repatriate their father’s remains to the Sac and Fox Nation in Oklahoma. Thorpe died in 1953. Another son filed the lawsuit in 2010. After his death, his brothers took over as plaintiffs. Thorpe has been hailed as the greatest athlete in history. He was a high school football star, won the Olympic medals for the decathlon and the pentathlon (the medals are another story altogether) and played both professional baseball and football. He was named All American twice and was one of the first players to join the Football Hall of Fame. His sons claim that Thorpe’s widow (their stepmother) agreed with them that Thorpe would be buried in Oklahoma in a traditional Sac and Fox ceremony. The night before the interment, though, she apparently changed her mind. She left with Thorpe’s body, eventually burying him in a mausoleum in a Pennsylvania town that officially adopted his name. Jim Thorpe, Pennsylvania, is home to the Jim Thorpe Area Hall of fame Thorpe’s grave is in the Jim Thorpe Memorial Park. By law, Thorpe’s widow had every right to decide where her husband would be buried. He had left no will and no written instructions. His sons claimed he told them he wanted to remain in Oklahoma, but there was no record to support the claim. Make that by American law. According to the Sac and Fox Nation, written records, including wills, are not a part of their culture. To make their case in American courts, though, the plaintiffs had to look to a federal law, specifically the Native American Graves Protection and Repatriation Act of 1990. We’ll explain further in our next post. Source: USA Today, “ Fight for Jim Thorpe’s remains continues 62 years later,” Erik Brady, Aug. 8, 2015 Our firm handles lawsuits like the one discussed in this post. If you would like to learn more about our practice, please visit the Ohio Probate Litigation page of our website.

On Behalf of Zigray Law Office, LLC | Dec 2, 2015 | Probate Litigation A friend of ours tells us her parents have not locked their doors for decades. They don’t even know where the keys are. Why should they? They have never had a problem, they explain — after all, they live in a rural part of Ohio, where their closest neighbor is a couple of miles away They have dogs, but they are not watch dogs. If they lock the windows, it is only to keep the wind from whistling. They just have faith that they are safe from harm. If they lived in the city, things would probably be different. They would have locks on their doors, and they would lock their windows or put stoppers in to keep them from opening too far. They might have a security system that would alert them to an intruder at night and notify the police or fire department if there were any trouble. In short, they would protect themselves. As we get older, we join a demographic group that is especially vulnerable to abuse, especially financial abuse. We can protect ourselves, though, by taking a few simple steps. Elder advocates suggest the following: Request that retirement fund disbursements, pensions and other regular income be deposited directly into your checking or savings account Prepare a durable power of attorney Do not sign any documents that you do not completely understand Do not believe someone who promises to keep you out of a nursing home in exchange for cash or property, whether from you now or from your estate after you die Try not to put all of your care in the hands of family members; keep in touch with friends and religious or social organizations As difficult as it is to admit, no one is entirely safe from financial misdeeds. And, in some instances, we can be our own worst enemies. We can lose track of bills, and we can trust the wrong people. We can be more vulnerable than we want to admit. Ohio’s civil and criminal laws protect us, but only after we have suffered some harm. We should think about locking the doors and windows before someone breaks in. If you suspect you or someone you know is the victim of abuse, contact your county’s Department of Job and Family Services. If you need help with a durable power of attorney or other estate planning tool that will protect your assets, you should consult with an attorney. Source: Ohio Legal Services, “Domestic Violence: Adult Protective Services FAQ,” accessed Dec. 2, 2015

On Behalf of Zigray Law Office, LLC | Nov 17, 2015 | Probate Litigation In our last post, we talked about marriage annulment. Is it possible to annul an adoption? This is a question that a Pennsylvania couple would like to have answered, though not because the adoption isn’t working out. The adoption was just a formality, a way to tie the couple together when the law barred them from marrying. We are talking about a same-sex couple. Legally father and son since 2012, the two men have been partners for more than 40 years. Without the benefits that come with marriage, though, they wanted to take extra steps to ensure that they would be one another’s closest relative. As such, they could overcome barriers to being involved in medical decisions, for example, and some probate laws. The its Obergefell v. Hodges decision last summer, the U.S. Supreme Court made same-sex marriage legal in every state. That was just the news the couple had waited for. They hurried down to pick up a marriage license. Pennsylvania, however, is one of 25 states that does not allow close relatives to marry — even if the relationship is by adoption. Before they can tie the knot, they must untie the adoption. That requires court approval, though, and the judge in their case declined to approve the adoption annulment. He did not object to the idea, he said; rather, he felt this was a matter better heard in an appellate court. An appellate decision carries more weight than a trial court decision. So the couple is waiting for the court of appeals to rule in the matter. Arguments are scheduled for December. According to Wealth Management, 25 states prohibit marriages between people closely related through adoption. Michigan is not among them. For the time being, Michigan law is quite specific about the types of prohibited marriages: The statutes list prohibited marriages for men and women separately. A man cannot marry his son, for example, or his nephew. The prohibited relationships are ones of consanguinity — that is, there must be a common ancestor. We should note that Michigan law has not been amended to conform to the Obergefell decision. As a result, we suggest that questions regarding specific situations be directed to a family law attorney.

On Behalf of Zigray Law Office, LLC | Nov 9, 2015 | Probate Litigation We are talking about a dispute between the children of the Rev. Dr. Martin Luther King Jr. over two of his most valued possessions: his traveling bible and his Nobel Peace Prize medal. In the early ’90s, King’s four children and his widow formed a corporation to manage King’s estate, appointing themselves as the estate’s board of directors. The current debate stems from an agreement among those five original directors to sign over to the estate any items they personally inherited from King. That was in 1995. A few years ago, following the deaths of King’s widow and one of his daughters, his two sons found a buyer for the bible and the Nobel medal. They asked their sister Bernice to make good on the 1995 agreement and to turn over the two items, then in her possession, to the estate. She refused. As we said in our last post, nothing is ever as simple as it looks. In January, the Los Angeles Times reported on a hearing in the matter, and the story illustrates just how complicated the issues really are. Bernice King maintained that she did not inherit the Nobel medal from her father. Rather, she said, her father had given it to her mother as a gift; Bernice now controls the disposition of the medal because she is the executor of her mother’s estate. The question is one of ownership, the brothers said. At the hearing, the parties’ attorneys disagreed on whether Bernice must prove that she owns the medal or whether her brothers must prove that someone else (the estate) owns it. Between January and May, the siblings attempted to negotiate a settlement. When it seemed that the parties were at an impasse, Bernice’s attorney asked the court to direct them to mediation. Hearing no objection from the other side, the judge did so. The media revealed last month that the mediator the parties agreed to was Former President Jimmy Carter. Carter, now 91, issued a statement in early October that negotiations were proceeding and a settlement was in sight. After that, the media apparently lost interest. There have been no reports of new developments. Mediation is an important alternative to litigation, even for estates with lower profiles than King’s and with mediators just as skilled — though perhaps not quite as famous — as the former president. Source: WTOL, “Carter to mediate dispute over MLK Bible, Nobel Peace Prize,” Kate Brumback, Oct. 5, 2015

On Behalf of Zigray Law Office, LLC | Oct 20, 2015 | Probate Litigation Litigation is not the only way to resolve a probate dispute, especially when family members are pitted against one another. Mediation is a less expensive and, in theory, a less contentious way to settle a matter, in part because there is no right or wrong answer. Mediation is about finding common ground with the help of a neutral third party. It is the rare case that enlists former President Jimmy Carter as the mediator, but an argument among siblings over two of their father’s possessions has done just that. The siblings in question are the three surviving children of the Rev. Dr. Martin Luther King Jr., though, and the artifacts are the late civil rights leader’s traveling bible and 1964 Nobel Peace Prize. According to the Georgia Secretary of State’s website, the King estate was incorporated in 1993 with King’s widow and four children as directors. The corporation took over the business of protecting King’s legacy, particularly any intellectual property rights for King’s works. King’s widow and one of his daughters died in 2006 and 2007, leaving the estate in the control of two sons and one daughter. A quick aside: Anyone can establish a business entity — limited liability company, corporation, etc. — and transfer the ownership of the assets to the business. The move especially makes sense for estates of public figures like King and Marilyn Monroe because of the potential for income generated by the use of the deceased’s name, image or, as here, copyrighted material. A significant advantage of this approach is that decision-making processes are laid out in the articles of incorporation and bylaws. That does not mean, though, that litigation between directors doesn’t happen. This dispute traces back to 1995, when the original five board members agreed to sign over their personal rights to items inherited from King to the estate. When the brothers found a buyer for the bible and the Nobel medal a few years ago, their sister refused to sell. The brothers then accused their sister of sequestering the bible and Nobel medal in contravention of the 1995 agreement. Of course, nothing is ever that straightforward. We’ll explain in our next post. Source: WTOL, “Carter to mediate dispute over MLK Bible, Nobel Peace Prize,” Kate Brumback, Oct. 5, 2015

On Behalf of Zigray Law Office, LLC | Oct 12, 2015 | Probate Litigation In a room full of guardians in the state of Ohio, a few things will be true of all of them. All have a fiduciary duty to their ward. All have been appointed by the probate court, and all answer to the court. There are some important differences, though, that cut across the group. For example, the group might include humans, corporations and associations. And, of course, the guardians may not be the same kind of guardian or have the same scope of responsibilities (all of this is spelled out by the probate court and must be carried out as ordered). – A guardian of the person sees to the ward’s day-to-day needs, including food, shelter, clothing and health care. If the ward is a minor, the guardian of the person is responsible for the ward’s education, as well. There are times, too, when a guardian of the person will make medical treatment decisions for the ward. – A guardian of the estate takes care of the ward’s property and finances. So, the guardian of the person may have the ward admitted to a skilled nursing facility, but the guardian of the estate will pay the bills. This guardian is responsible for every aspect of the ward’s finances — payments, collections, investments, disbursements and so on. Because this guardian controls the ward’s assets, he or she must provide a fiduciary bond to the court. – The court may choose to appoint a limited guardian to handle specific aspects of the ward’s life. The limited guardian may be responsible for managing household expenses and nothing else. Another guardian or the ward would handle investments, inheritances and the rest. – In our June 1 post, Taking legal action to remove a guardianship, we talked about the process of having the court terminate a guardianship. The ward would not go without help. The court would appoint an interim guardian to take over for the terminated guardian until the court appoints another. – There may be situations that require the immediate appointment of a guardian. The court may appoint an emergency guardian to handle specific matters. Finally, all guardianships have another thing in common: They are all unique. It isn’t the powers and duties that make them different. What distinguishes one guardianship from the next is the ward. Source: Ohio State Bar Association, “Guardianships,” last updated April 2014

On Behalf of Zigray Law Office, LLC | Oct 5, 2015 | Probate Litigation There were nearly 67,000 family farms in Ohio in 2012, according to the U.S. Department of Agriculture. That is 88.7 percent of all farm operations in the state at the time. The USDA reports, too, that the average principal farm operator in the state was just shy of his (or her) 57th birthday. Overall, the data shows that while the number of family farms was on the decline, the average age of the operator was on the rise. What will happen to the farms as this generation moves on to the next phase of life? Most workers are considering retirement by the time they reach their late 50’s. Some are looking at downsizing their family homes or relocating to a warmer climate. They are fine-tuning their estate plans, selling off items that the next generation has no interest in, making sure they are managing their assets in a way that will secure both their and their heirs’ futures. For family farmers, retirement may not be an option, but that does not mean they shouldn’t be thinking about estate planning. Farmers often have their capital tied up in their operations. There are barns and other outbuildings, there are machines and heavy equipment, there are the crops or the livestock — and, of course, there are the family homes. For farmers, managing assets is not a matter of investing in bonds rather than the stock market, and writing an estate plan is not a matter of dividing the possessions equally among the children. A farm is a single entity — it makes no sense to leave the land to one child and the equipment to another. Developing an estate plan for a family farm can be a difficult and delicate task. If it’s not done right — or, worse, not done at all — the result can be a dispute that pulls the family apart just when they need each other the most. The attorneys at Zigray Law Office LLC have the experience necessary to avoid or to resolve a family farm dispute. We work with probate litigation regularly, and we understand how the law applies to family farms. We pay close attention to the details that farmers may not have time to attend to on their own. If you are concerned about the disposition of the family farm before or after the current generation is gone, please contact us for a free consultation.

On Behalf of Zigray Law Office, LLC | Oct 2, 2015 | Probate Litigation Estate planning can be a complicated matter when it comes to working around divorce and remarriage, as some of our readers may know personally. Obviously, those who are divorce and those preparing for remarriage should always go back over their estate planning documents and make any necessary changes to keep things updated. This is especially important when there are martial agreements involved. More and more people nowadays are using prenuptial agreements as part of their estate planning, and it is important to ensure that there are no conflicts between these various documents. On the estate planning side of things, there is the will, beneficiary designations, trusts, guardianship selections, power of attorney appointments, among other documents. When it comes to matters related to property distribution at one’s death, one needs to come up with a plan that is laid out consistently between all the various documents. One also needs to keep these documents updated to reflect significant changes, such as divorce and remarriage. Prenuptial agreements, for their part, are another potential document to add to the mix. If one is marrying again after having started a family, one may wish to provide for one’s already existing children in the prenuptial agreement. One is free to provide for future children in one’s estate planning documents, or vice versa. Whatever plan one comes up with, the most important thing is to be consistent and clear with the terms, and be aware of any blind spots in the plan. When dealing with these matters, it is critical to work with an experienced estate planning attorney who understands how to carefully draft and coordinate the various documents. Making sure things are done right helps to reduce the possibility of legal battles later on.

On Behalf of Zigray Law Office, LLC | Aug 28, 2015 | Probate Litigation We are wrapping up our discussion about health savings accounts. When we left off in our last post, we were talking about some of the advantages of HSAs and the differences between HSAs and other tax-advantaged programs. One of the key differences between a flexible spending account and an HSA is that balance will roll over from year to year. The flex account allows you to set aside money to cover medical expenses that may not be covered by your health insurance. Flex account contributions are pulled from your paycheck before taxes are taken out, lowering your taxable income. Unlike HSAs, there is no deductible threshold for a flex account, but any money left in the flex account at the end of the year is forfeited. Because the money stays in the account and accumulates over time, an HSA is also a good retirement planning tool. There is no time limit on it — money you contribute today can be used for a health emergency at any point in the future. If you pass away before you have used all of the funds, the money will be distributed to your designated beneficiary. There is a catch, though. The federal government prefers that you keep your tax breaks in the family. If you name your spouse as your beneficiary, the HSA will simply transfer to his or her name. Nothing else will change. If, however, you name someone else as your beneficiary, the funds alone transfer after all of your qualifying medical expenses are paid for, and the beneficiary will be taxed on the account’s fair market value. If you name your estate or name no beneficiary, the funds become taxable income on your final tax return. As you can see, then, there are distinct advantages to checking all of your accounts to make sure the beneficiary information is up-to-date. And, the more current your accounts — and your estate planning documents — are, the lower the risk of misunderstanding and discord among your heirs.