On Behalf of Zigray Law Office, LLC | Feb 17, 2021 | Probate Litigation

The probate process is already lengthy enough — but it can get a lot longer if there’s a problem identifying or locating the decedent’s heirs.

Until there’s been a reasonable effort to locate any unknown or missing heirs, nothing can move forward.

How an executor can try to locate a missing heir

There are multiple ways that executors can and should attempt to find any missing heirs so that an estate can be settled. They include:

• Do a search online for the missing heir’s last known address and send communications there to see if there is a forwarding address
• Try a social media search (which may be more successful if the heir has an unusual name or you at least know their current state of residence)
• Look through the property records in the counties where the heir was known to reside
• Check voter registration records if you know in what state the heir lives
• Advertise or “serve by notice” in the local newspaper for several weeks in a row to see if they (or someone who knows them) will notice
• Contact former employers, friends, former partners and extended family members to see if they have any current information or clues
• Hire a private detective or a legal firm that specializes in locating missing heirs

Executors have a big job, and complications like these can make the job very challenging. The delay caused by a missing heir extends the work the executor must do.

Failure to take sufficient steps to find a missing or unknown heir can (and does) result in probate litigation. With that in mind, it’s often wise to reach out for some qualified legal assistance with your problems.

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On Behalf of Zigray Law Office, LLC | Feb 3, 2021 | Probate Litigation

When people open financial accounts, such as checking, savings, or money market accounts, they can name a beneficiary who will receive the balance if the owner passes away. This is an important component of an estate plan because it holds more weight than a will. 

There are many reasons why a person should set up the payable-on-death designation. For one thing, it’s free. The financial institution that holds the account will set this up as part of the account setup process. It can then be changed when necessary. 

The process to claim the account

The transfer of the funds in the account should be fairly seamless. Typically, the beneficiary will need to show a photo ID and bring in a certified copy of the death certificate. This can get the assets to a beneficiary fairly quickly — which can help keep them financially stable in a time of need.

Creditors may stake a claim

It’s important to note that it’s possible for creditors to lay claim to the funds in some accounts. If the decedent owes money, the creditor may turn to the bank where they kept a savings or checking account for payment. Even unpaid taxes can be collected from those accounts.

Payable-on-death designation trumps the will

Accounts that have a payable-on-death designation shouldn’t be covered in the will. A payable-on-death designation overrides anything in the will, so it’s very important to make sure that your designations are aligned with your intentions for your heirs. (The benefit of this, of course, is that those assets won’t go through probate.)

There are times when the payable-on-death designation might come into question. Filing a dispute about this is possible if there are appropriate grounds. If you think that there is something amiss with your loved one’s estate and the way their accounts were disbursed, discuss the possibility with an attorney so you can find out what options you have. 

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On Behalf of Zigray Law Office, LLC | Jan 20, 2021 | Will Contests

People often update their will throughout their life. When a family member dies, you would expect to distribute their estate according to the most recent version of their will. However, this may be inappropriate.

There are times that a loved one’s most recent will really doesn’t reflect their true intentions.

Why might you want to contest the latest version of a will?

You may suspect that the latest will does not reflect the person’s true wishes. If so, you might wish to challenge it on one of these grounds:

• Undue influence: For a will to be valid, the person must have made and signed it of their own free will. It should represent their true wishes for the distribution of their estate. If they changed it to benefit someone a lot of time with them before their death, you might suspect foul play. You might feel that person used their proximity to convince your loved one to leave things to them.
• Lack of testamentary capacity: Many older people suffer a decline in mental health during their last few years. The law requires anyone creating a will be of sound cognitive ability. If your mother could not recognize her grandchildren, she is unlikely to have known what she was doing when she altered her will.
• Fraud, duress or mistakes: If the signature does not match the person’s usual signature, it may be fraudulent. If your father changed their will to benefit a shady business contact, you might feel they did so under duress. If a will was not signed or witnessed correctly, the mistakes could deem it invalid. 

Ohio law only gives you three months to contest a will. If you doubt a will’s validity, you need to understand the legal options available sooner rather than later. 

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On Behalf of Zigray Law Office, LLC | Jan 7, 2021 | Will Contests

If you’re working on your will now, something you may want to do is to prevent a will contest. If you have several beneficiaries and know that conflicts might arise, you should talk to your attorney about different options for limiting their right to contest your will. 

One of the simplest ways to prevent a will contest is to include a no-contest clause. This on its own may not be enough, though, so there are other steps you’ll want to take, such as including a doctor’s note to show your testamentary capacity or having a discussion with your beneficiaries before you pass away.

Why do will contests happen?

In many cases, will contests happen because there is a lack of communication between the testator and their heirs. The person who is contesting the will may feel that they were unfairly left out as a beneficiary or that they did not receive what they thought they would as an inheritance. 

To help avoid this, those creating wills may want to sit down with their beneficiaries and talk about their wishes. In addition, if you would like to add a no-contest clause to your will, tell your beneficiaries how that would impact them if they did intend to contest your will. In many cases, contesting a will with a no-contest clause will result in the individual losing their inheritance if they lose the case. 

Creating a will and taking care of the people around you is important to you, but will contests can hinder your good intentions. Good preparation will help you make sure that your beneficiaries don’t end up contesting the will you worked hard to create.

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On Behalf of Zigray Law Office, LLC | Dec 28, 2020 | Uncategorized

When you pass away, there is a potential that your loved ones will have to go through some kind of estate litigation. While you may have set up trusts in the way you saw fit, if they don’t think the terms are fair, then one or more of your heirs may contest your decisions.

What are the main causes of litigation over trusts?

The three main reasons that people contest a trust include undue influence and coercion, forgery or fraud and the lack of mental capacity on the grantor’s part. Here’s what each of those mean:

Undue influence

An undue influence contest might happen if your loved ones believe that you were coerced into making decisions that you wouldn’t have made otherwise. For example, if you had a new caretaker who you left assets to, your children might dispute that decision.

Forgery and/or fraud

Forgery and fraud is the next major issue that might come up. If your signature doesn’t look right, a will was changed suddenly when it was unlikely that you could change it or you were given paperwork to sign not knowing that it was related to your trust, then your family could contest the trust’s distribution.

Lack of capacity

Finally, there is the question of capacity. If you develop Alzheimer’s disease, dementia or other medical conditions that make it hard for you to have good cognition, then changes to a will or trust could be contested.

To help avoid trust disputes, it’s a good idea to include updated medical documents showing you have the capacity to make decisions with each change. You should also have witnesses there who don’t have anything to gain from your legal documents, so they can attest that you signed willingly. Your attorney can help you guarantee that your trust is set up correctly.

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On Behalf of Zigray Law Office, LLC | Dec 16, 2020 | Probate Litigation

There are plenty of estate disputes that center around financial value. One heir gets less than another and contests the will on the grounds that the heir who got more money used undue influence to get it, for example. Money is a major source of conflict, especially when things are not equal.

It’s not the only source of conflict, though, and it’s often not even the most contentious situation. When things get really complex is when sentimental value comes into the picture.

The emotional connection

Sentimental value is simply the way that the value or importance of something can be inflated for a specific individual due to their personal and emotional connection to that item. It is often closely tied to memories. As you can imagine, emotions and memories are two major elements that are in play after someone has passed away.

For example, two siblings may both want the same set of books that their parents had on the mantle over the fireplace. These books do have a monetary value, but they could buy another set for a small fee on Amazon. Say the whole set is worth $100.

However, if one sibling gets that set and the other doesn’t, they may enter into a debate about how their parents wanted assets to be distributed. The sibling who did not get the books may argue that their parents told them they could have them, for example, even if they forgot to put it in the will.

Why would someone spend money on a court dispute when the books are only worth $100? The problem is that they’re worth far more than $100 to those specific people. Those books are tied to their memories of growing up, reading with their parents, visiting for the holidays in adulthood, etc. No one else would care about the set, but those siblings may struggle to find a solution since the books mean so much to each of them.

A contentious case

If you get involved in a contentious probate litigation case, you need to know what options you have. Things are not always as simple as just splitting up money.

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On Behalf of Zigray Law Office, LLC | Dec 10, 2020 | Will Contests

You’ve seen your parents’ will. You believe it is fair and accurate. That doesn’t stop you from having some concerns, though. When your parents pass away, is your sibling going to challenge that will?

Heirs do have a right to challenge a will

First and foremost, you need to know that your sibling is an heir and therefore has a right to challenge a will. They still need a reason to do so, but they have that right as an individual. Not everyone does. It’s generally restricted to close family members and those who would have benefited from a change. 

The next thing to consider is if there is even a reason for a challenge. They may want to do it just because of an old rivalry between the two of you or because they never got along with your parents, but that’s not enough of a reason on its own. They need something like:

• A belief that the will is a fake or a forgery
• The knowledge of a more recent will that takes precedence
• The belief that undue influence played a role in the will’s creation
• The allegation that your parents did not have the mental capacity to write the will

As you can imagine, this situation can grow quite contentious. If they challenge on the grounds that you forged the will or used undue influence, it’s hard not to see it as a personal attack, as well. 

What should you do if your sibling threatens to challenge your parents’ will?

Try to stay calm and collected. Just take the time to look into your legal rights. Will disputes are complicated, but resolutions are possible. Early action can help avoid a conflict that could otherwise damage your family’s long-term relationships.

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On Behalf of Zigray Law Office, LLC | Nov 25, 2020 | Uncategorized

If you have a physical impairment, then Ohio law may allow you to apply for a conservatorship. While many tend to think of this as a permanent type of relationship, it’s not. Both applicants and prospective conservators must attend hearings before the establishment of conservatorship and to terminate it. 

A conservator is a voluntary position supervised by a probate judge. The person appointed to this role by the court may take charge of an applicant’s person, estate or both of these matters. Conservators generally put up a bond before their appointment to such a role. 

What is a conservatorship?

Individuals who apply for a conservatorship may have physical disabilities yet be fully mentally competent. An applicant generally selects a conservator to assist them in the making regarding their assets or care. A conservatee can rely on the probate judge presiding over their legal matter to hold the conservator accountable for their actions. 

How long does conservatorship remain in effect?

The establishment of a conservatorship isn’t automatic. An applicant must identify and submit a prospective conservator to the probate court in the Ohio county in which they reside for consideration. The clerk will schedule a hearing at which the judge will determine if you, as the applicant, indeed have a physical impairment, yet not a mental one. They’ll want a doctor from your letter confirming this. They’ll also want to see proof that your selected conservator understands their fiduciary duties and is otherwise appropriate for the role. They’ll need to submit to a background check as part of this process.

How can you end a conservatorship?

Conservatorships don’t always last forever. They automatically come to an end when the conservator resigns their role unless the conservatee appoints someone to replace them. A conservatorship may also end when the conservatee passes away. A conservatee can also petition a judge to terminate the conservatorship in writing, as well.

Your Ohio conservator has a fiduciary duty to you to make choices in your best interests — not theirs. You may feel that it’s the right time to remove them from their role if your values no longer align. A guardianship & conservatorship attorney can help you compile the necessary information and argue your case for removing your conservator.

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On Behalf of Zigray Law Office, LLC | Nov 25, 2020 | Will Contests

Most adults understand the importance of drafting a will. It allows them to have a say in deciding what will happen with their property once they pass away. What many people may not realize is that not just anyone can draft this legal document. There are certain conditions that an individual must meet to be eligible to draft a will and for it to be legally enforceable. Testators must be competent to prepare such a document.

What is testamentary capacity?

No one condition definitively renders someone incapable of drafting a will as each person’s experience is unique. Cardiovascular conditions, including heart failure or a stroke, can significantly affect a person’s cognitive or neurological function, thus rendering them susceptible to undue influence or coercion from others, though. Infections, metabolic disorders, organ failure, cancer and drug side effects can all do the same.

How lawyers (and judges) assess a testator’s testamentary capacity

An Ohio lawyer assisting their client in drafting their will should take time to speak with them to gauge their competence to draft a will and their voluntariness to do so. They should not support a client in preparing their will if they fear that the testator lacks testamentary capacity or if someone is forcing them to draft the legally binding document.

The attorney should also confirm that the testator understands the purpose of a will, the breadth of the property they own and what Ohio law says about property inheritance, a process known as intestate succession. A lawyer can assist their client in drafting a will once they see that they voluntarily want to do so, understands the purpose of this document, property that they own and state laws surrounding their disposition.

An Ohio judge will want to know that a lawyer walked a testator through these steps should an heir or other interested parties contest their will.

What to do if you suspect a lack of testamentary capacity

Many legal analysts liken the concept of testamentary capacity to consenting to treatment or executing a contract. Others argue that it falls far below that.

You may have a valid claim for contesting your loved one’s Ohio will if you can prove that they were subject to undue influence or lacked testamentary capacity that they drafted it. An attorney can help you determine whether you have enough information at your disposal to prove your Toledo case.

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On Behalf of Zigray Law Office, LLC | Nov 20, 2020 | Will Contests

If you are left dissatisfied by what is revealed in a family member’s will, you may be considering whether to file a challenge. While reports suggest that will contests are on the increase, it is never something you can take lightly.

What are the negatives to a will contest?

There are a lot of potential negatives to this kind of action, including:

• It will delay probate: This could delay you and other family members from receiving assets, which could cause people problems or hardship.
• It could reduce the estate: Fees to defend the will are usually paid from the deceased’s estate, leaving less to go around.
• It will cost you money: Challenging a will can take time and incur considerable legal fees.
• You might lose: Many will contests fail. Are the potential gains worth this risk?
• It could destroy your family: If your dispute is with a close family member, your relationship may never recover.
• You may be going against the deceased’s wishes: However strange someone’s decisions may seem to you, sometimes they have a reason for their actions. How will you feel about going against their plans?

In many cases, contesting a will is the right thing to do. Forgeries and fraud can happen. People do use their influence to persuade someone to change a will in their favor. People can make decisions to the detriment of their loved ones that they would not do if they retained their full mental capacities. An attorney can help you decide if you have grounds to mount a contest, but only you can decide whether to pursue it — although your attorney may also have ideas about ways your issue can be resolved without a long, formal battle.

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