On Behalf of Zigray Law Office, LLC | Nov 19, 2020 | Will Contests

Your parents were never big spenders. Despite earning well, they lived in a modest house, drove an old car and preferred to cook at home rather than eat out. When your father died, you tried to tempt your mother to spend some of her money on seeing the world. Yet, she never got further than a trip to Yosemite.

When your mom passed away, you and your brother received equal shares of the house. However, neither of you received a cent of your parents’ considerable funds in their savings account. That all went to a man with who your mom had become friends since your dad died. Your mom apparently made him the beneficiary of the account a few months before she died.

Can people designate anyone as a beneficiary of an account?

When people are married, they often put each other as the beneficiary of their bank accounts to ensure their spouse is provided for when they die. Most would designate their children as primary beneficiaries afterward. Yet, people are free to choose who they want as beneficiaries and can alter them when they wish. 

That does not mean, however, that you may not have reason to mount a challenge over the funds.

What grounds can you contest a beneficiary designation?

There are various grounds for the kinds of actions, including:

• Undue influence: Sometimes, people develop emotional power over others, which they use to their advantage.
• Fraud: If your mom had poor eyesight, someone could have told her she was signing something else altogether.
• Forgery: Maybe the signature is not your mom’s.
• Mental incapacity: If your mom lived with dementia, she might not have known what she was doing.

You can contest a beneficiary designation if you are a child or spouse of the deceased or were previously a beneficiary. Seek legal help if you feel someone has cheated you out of your inheritance or something doesn’t seem right about an estate.

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On Behalf of Zigray Law Office, LLC | Nov 17, 2020 | Probate Litigation

“What? That old thing?” Some people boast about the value of the objects they own. Others take the opposite approach, downplaying the cost of a painting or piece of furniture they “found in a thrift store.” They may care so little about an item’s monetary value that they do not bother to mention it in an estate plan, causing problems for their family when dividing the estate.

The value of things can change over time

Something your great grandmother picked up on her travels through Africa may now be a museum piece, despite the fact it is currently gathering dust in the attic. Vincent Van Gogh’s paintings were almost worthless during his lifetime; now, they are worth millions. Your loved one may not even have realized that an item was valuable — and that can lead to disputes over an inheritance among their heirs. 

Things may have a value that is not monetary

Irrespective of financial worth, family members may become attached to certain items for sentimental reasons. Perhaps your grandad’s desk holds particular value for you, as he inspired you to write. Maybe your sister loves your grandmother’s rings due to the hours she spent playing with them while sitting on grandma’s lap as a child. The emotional attachment people have to certain objects can also lead to fights.

How do you divide up things not mentioned in an estate plan?

There is no straightforward answer on the best way to divide assets omitted from an estate plan. You could use the monetary approach, bringing in experts to value the different items and give everyone a fair financial share of the overall total. You could sell the things, splitting the money received between you. Or you could discuss the items with your family and try to find a fair result for everyone based on the sentimental reasons people want particular objects. Avoid taking anything without the permission of the other beneficiaries of the estate. If they find out, it could provoke an ugly situation and lead to legal challenges.

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On Behalf of Zigray Law Office, LLC | Nov 13, 2020 | Uncategorized

When you were a child, your parents told you that your grandmother had created a trust in your name. At the time, you did not know what that meant, other than that, grandma had left you some money, but you could not spend it yet.

With time, you took more interest and began to investigate how the trustee was handling the funds. Now you are starting to wonder whether they are trustworthy or whether they have been secretly serving their own interests.

Reasons for removing a trustee

If you wish to remove the trustee, you will need grounds to do so. Having a suspicion is not enough. These are some of the common reasons a court may allow you to remove one:

• Failing to do what is best for the beneficiaries: A trustee has a fiduciary duty to act in the best interests of the named beneficiaries. Failing to do this, whether through mismanagement, neglect or intent, breaces that duty.
• Using the trust for their own interests: The trust is for your benefit, not that of the trustee.
• Failing to provide information to the beneficiaries: As a beneficiary, you have the right to certain information, which the trustee should give willingly.Inability to cooperate with fellow trustees: If your grandmother made more than one person trustee, they need to be able to work together. Otherwise, they may be unable to reach decisions in the best interest of the trust. As with any team of people, sometimes the only way to resolve a situation is to remove someone.                                                                                                                        There may be specific clauses in the trust to cover who can contest the actions of a trustee. A court will start from the basis that your grandmother chose someone they confided in to manage it. You will need legal help to prove that she misplaced her faith.

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On Behalf of Zigray Law Office, LLC | Nov 11, 2020 | Guardianships

“Once a guardianship is imposed, there are few safeguards in place to protect against individuals who choose to abuse the system.” Those are the words of the US Senate Committee on Aging after a 2018 investigation into guardianship.

That is a worrying statement if a member of your family is under guardianship. There are over 2,000 adults in Lucas County whose decisions lie in the hand of their guardians. There were 30 complaints filed in 2018, yet there is no-one employed full time to investigate these complaints. In other words, abusive guardians may be able to continue to take advantage of their powers for quite some time before a court challenges them over it.

When challenging a guardian, the onus will be on you to provide evidence to support your challenge. There are various reasons you could contest someone’s power over your loved one and their affairs:

• Abuse: This could be financial, physical, emotional or psychological.
• Neglect: A guardian has a fiduciary duty to do the best for their ward, which is the legal term for the person the court awards them power over. If they fail to comply with their duties, it could harm their ward, financially or in other ways.
• Overstepping their power: When a court awards a guardianship, it usually places limits on the scope of the guardian’s powers.
• Failing to share information: In Ohio, guardians must produce a report each year to update the court on their ward’s finances and wellbeing.

If you are concerned that a guardian is failing to comply with their role, seek legal advice. An attorney with experience in this area can help you resolve the issue faster. Being given control over another person’s life is a massive responsibility. A guardian needs to carry out their duties with the respect and integrity that the position and ward deserve.

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On Behalf of Zigray Law Office, LLC | Nov 10, 2020 | Uncategorized

Sometimes when you read a person’s will, it can be a pleasant surprise. You may discover that your aunt, who lived a simple life, had secretly built a multimillion-dollar property portfolio. Or that the elderly gentlemen you mowed the lawn for left you some money. However, often the surprise is a nasty shock. Many an expectant beneficiary has discovered their parents have excluded them from a will or given them much less than they hoped.

While most wills pass through probate without challenge, sometimes you may feel it is necessary to contest one. You can only do this for specific reasons, and not everyone can do so. If you wish to mount a challenge to a will, you need to be either:

• Named in the will.
• Named in a previous version of the will.
• An heir who would inherit if there were no will.

You cannot contest the will because you do not like what it says. You need to challenge the validity of the document. To mount a successful challenge, you need to prove one of the following:

• The person did not make the changes of their own free will: There are many ways to influence people; some are subtle, some not so much. Older adults can be especially vulnerable to this. They may have a mental illness, be cut off from regular contact with family and rely heavily on one person to care for them.
• The person did not have the mental capacity to understand their actions: Challenging someone’s testamentary capacity is commonly used when the person had dementia. You will need medical reports and doctor’s statements to prove your point.
• The person did not sign it correctly: If the required number of people did not witness it or if it contains errors, you may be able to contest it.

Before challenging a will, it is vital to check if it contains a no-contest clause. These are usually upheld in Ohio and penalize anyone who files a challenge to the will. You should also be aware of the possible consequences to relationships with other beneficiaries.

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On Behalf of Zigray Law Office, LLC | Nov 6, 2020 | Probate Litigation

Estate administration is somewhat notorious for being a time-consuming process. While you may hope to receive your share of the inheritance promised in the estate plan quickly, the executor has many things they have to do before they can distribute assets to you and other beneficiaries.

For example, the executor needs to collect all critical financial paperwork and present that, along with copies of the estate plan or last will, to the probate court. They will then need to pay taxes, settle debts and close out the account owned by the deceased party. Only once they have handled all of the testator’s obligations can they start to distribute assets to heirs.

Sadly, this means that your inheritance is dependent upon the actions of someone else. What can you do when an executor isn’t fulfilling their obligations?

Verify that the executor isn’t taking the necessary steps now

Before you start making accusations against someone who likely is either part of your family or has close ties to your family, you want to make sure that you don’t misunderstand the situation. It’s possible that the executor has slowly but surely been dealing with the various responsibilities inherent to their position.

If they have submitted the last will, begun closing accounts and are otherwise in the process of handling the estate, you may simply need to be patient for a little bit longer until they are in a position to distribute property from the estate. However, if they have not closed accounts, paid bills or otherwise performed their necessary duties, you may need to consider taking legal action.

You can challenge an executor without challenging the estate

One thing that most people don’t understand about probate litigation is that it is possible to challenge the person handling the estate without challenging the executor.

If you believe that an executor hasn’t fulfilled their obligations and won’t do so or is not capable of doing so, asking the court to appoint an alternate executor may be the best option for you and everyone else. After all, delays could impact the value of the estate and even lead to creditors seizing assets in some cases.

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On Behalf of Zigray Law Office, LLC | Nov 4, 2020 | Breach Of Fiduciary Duty

It can be unpleasant to think about passing away or becoming incapacitated. However, failing to make plans if either of these things happen can prove to be a costly and painful mistake. One significant consequence could be that someone you do not trust or know could wind up making financial decisions on your behalf.

A financial power of attorney (POA) empowers you to appoint the person or persons who will manage your financial affairs if you cannot do so yourself. This party has the power to protect you from abuse, ensure you receive appropriate care and preserve your estate plan. Thus, choosing the right person is critical.

Traits of an effective agent

When you are thinking about who to name as a POA agent, consider someone who has the traits of someone who would handle the role well. 

Often, a person who can be an effective agent is someone who is:

• Trustworthy
• Honest
• Capable of understanding complicated financial matters
• Invested in your best interests
• Organized
• Familiar with your wishes, values and beliefs
• Responsible

A spouse, sibling or parent can fit these criteria, so people typically assign them as a POA. 

On the other hand, some traits make someone a riskier option for an agent. You may not want someone in this role if they:

• Are struggling with personal debt
• Are addicted to gambling, drugs or alcohol
• Are very young
• Have strained relationships with you or those closest to you
• Have values or beliefs that do not align with yours
• Have a history of abuse

People with these traits may not be capable of or willing to make sound decisions in your best interests.

However, even if you don’t have someone in your life with all the positive traits and none of the negative ones, you still have options. One solution could be to name co-agents who act alone or with each other to make financial decisions.

Consequences of not appointing a POA

If you do not appoint a POA, an Ohio court can put a guardian in place if you can no longer manage financial matters. This party may not be the person you would have chosen. You could wind up in a place you do not wish to be or targeted for financial abuse.

Thus, think carefully about who to grant these powers and then formalize your decision in a legally valid document.

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On Behalf of Zigray Law Office, LLC | Aug 21, 2020 | Uncategorized

This blog has discussed different ways a will may be contested. To help avoid will contest, it is helpful for estate planners and their families to understand the components of a valid will. So, what makes a will valid?

Legal capacity

The estate planner must be of legal age to enter into a will. Legal age to enter into a will is required and is usually the legal age to enter a contract. In most jurisdictions, the legal age to execute a will is 18.

Testamentary capacity

The estate lanner must also have testamentary capacity to enter into a will. Testamentary capacity refers to the estate planner knowing that they are making a will and the effect of the will; knowing the nature and extent of their estate; and understanding that they are disposing of their property and assets through the will. The estate must also be properly disposed of in the will.

Intent

The estate planner must have intent to enter into their will and dispose of their property and assets using the will.

Voluntary

The estate planner must execute their will voluntarily. There cannot be any duress, undue influence or coercion in the making of the will or in executing the will for the will to be considered valid.

Witness and signature requirements

The estate planner must meet witness and signature requirements in the jurisdiction where they are executing the will. Because these witness and signature requirements can vary, the estate planner needs to know what the requirements are where they are executing their will. Usually the will must be signed in front of disinterested witnesses who will not benefit from the will. Typically, two witnesses are required.

A valid will is an important part of an estate plan. For that reason, it is necessary to know what makes a will valid.

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On Behalf of Zigray Law Office, LLC | Aug 14, 2020 | Trust Contests

A fiduciary assumes the duty of acting in the best interests of another person. But this responsibility is violated when the fiduciary acts solely in their own interest. This self-dealing can lead to trust contests and other estate lawsuits.

Self-dealing explained

Fiduciaries must meet ethical and legal standards that require them to put the interests of the other person first when they manage their legal or financial affairs. They play an important role in administering an estate or acting as a trustee.

Self-dealing occurs when a trustee, will executor or other fiduciary uses their position of trust to act in their own best interest instead of the interest of the trustor or person who created trust or the estate of the testator or the person who signed the will.

Self-dealing and trusts

A trust is a legal entity that provides for the transfer of assets to a fiduciary known as a trustee. Trusts allow the build-up of an estate’s wealth while reducing estate and gift taxes for its heirs or beneficiaries.

The trustee is required to administer the trust in accordance with the terms set by the trustor. Because of the power and discretion given to a trustee, it is important to select a trusted, ethical, and competent fiduciary.

A trustee engages in self-dealing if they do not act in the interests of the trustor or the trust’s beneficiaries and they use their position for self-enrichment. Examples include making inappropriate investments with trust assets, lending trust assets to their friends or family members, and leveraging trust assets to get a loan.

Other self-dealing involves investment churning to generate higher broker fees for receiving a kickback from the broker and buying property or other assets held within the trust. Trustees have also distributed trust assets to themselves, their friends, or members of their families.

It is important to take legal action to protect your rights when a trustee is self-dealing. A lawyer can pursue these actions in court or take other steps to stop illegal and unethical behavior.

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On Behalf of Zigray Law Office, LLC | Jul 29, 2020 | Probate Litigation

Losing a loved one is hard. While you struggle to find a way to cope with the emotional fallout of your loss, things can be made worse when your loved one’s estate plan doesn’t unfold as expected. If you feel like you’ve been unfairly cut out of a will, then as difficult as it may be to do in the face of loss, you may need to consider legal action.

To appropriately address these matters, you need to be on the lookout for signs of undue influence. If you can prove such influence, then you might be able to invalidate a will and secure the inheritance that was intended for you. Here are some indications of undue influence:

• The influencer had power over your loved one, such as by serving as his or her sole caretaker.
• Drastic changes were made to your loved one’ estate plan, which probably benefited the influencer and disadvantaged you.
• The influencer was present when the will was drafted.
• The influencer identified witnesses to be at the will’s signing.
• Your loved one became more isolated once the influencer came into the picture.
• The influencer gave directions to an attorney who assisted in drafting the will in question.

These are just a few of the many signs of undue influence. In order to spot them, though, you need to keep your ears and eyes open while remaining aware of the circumstances surrounding your loved one’s estate plan.

In order to succeed in challenging a will through probate litigation, you’ll need much more than mere allegations. You’ll need evidence to support your claims, which means that you need to be thorough in your preparation before moving forward with a legal claim. Therefore, you might need to question critical witnesses and analyze relevant documents to better determine how best to craft your arguments. If you’ve seen some of the red flags identified above and feel like you were cheated out of your inheritance, then you might want to discuss the matter with your attorney.

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