On Behalf of Zigray Law Office, LLC | Apr 2, 2020 | Oil Rights and Mineral Rights

Wills and trusts are meant to protect an individual’s estate and make sure it is given to the right people. This isn’t always limited to houses, cars and bank accounts. Oil rights and mineral rights can be an incredibly valuable part of estate planning.

Oil rights and mineral rights are generally what they sound like: the rights to ownership of oil and/or mineral found underneath the ground. These rights can apply to the property owned by the testator or rights owned by the testator to material underneath someone else’s property.

Can you fight for oil and mineral rights during probate?

You may be able to contest the terms of a will or trust when it comes to mineral rights, but it really depends on your circumstances. It is possible that you could contest, but you will likely need to consult a legal professional.

If I inherited property, did I inherit the oil and mineral rights?

Potentially. If you inherit a plot of land, or surface rights, it’s possible that you also own the rights of what is below. However, you will need to research the title to find out if anyone else owns all or part of the oil and mineral rights.

What do you do with oil and mineral rights?

The value of oil and mineral rights really depends on what mineral you have the rights to and what portion of the rights you have. If you share the rights with others, you will likely need to work together to decide what to do with them. Sometimes, extraction and oil companies reach out to heirs once titles change. You and those you share mineral rights with may decide to sell or lease them to a corporation or extraction company.

If you think you may have inherited oil and mineral rights or are considering what to do with them, always talk to a lawyer. Be sure to protect yourself and your rights before signing or leasing anything.

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On Behalf of Zigray Law Office, LLC | Mar 11, 2020 | Uncategorized

Elder abuse is an unfortunate reality facing many families in the U.S. The potential is ripe for misusing conservatorship laws that are designed to protect people who are facing physical disabilities by appointing a person to manage their financial affairs.

A person who has become physically incapacitated, but retains mental competency – referred to as a conservatee (or ward) – can petition for a conservator, who will take over financial decision-making. Conservatorships can be temporary or permanent.

Although conservatees have numerous protected rights, including access to income or allowances and savings, the conservator retains a lot of power over the conservatee’s assets, which is why there’s a risk of abusive behaviors like embezzlement and fraud, regardless of whether the person was selected by the conservatee or by the court.

Sadly, these abuses of power can be difficult to spot by the untrained eye.

Red flags and warning signs

According to the Center for Elders and the Courts, very little data reporting exists for conservatorships, which is why a pilot program is in the works to increase conservator accountability and track cases where exploitation might be happening, including developing a system that detects “red flags” indicating potential abuse.

Learning to spot exploitation is a critical step in keeping tabs on a conservator. If you or your loved one has a legally-appointed conservator, here are some of the things you should look out for:

• Evidence of excessive errors, discrepancies or missing entries on the account
• Evidence of mental, physical, emotional or verbal abuse toward the conservatee
• Large purchases of property and other high-value assets by the conservator
• Suspected price gouging for conservator fees
• Neglecting or refusing the requests or needs of the conservatee

In the event of an unsatisfactory or abusive conservatorship, the conservatee can revoke the arrangement at will, or a judge can order a new conservator.

Don’t be a spectator in your own life

Knowing your rights is the first step in combatting abuse of power when you’ve entrusted someone with your livelihood. A qualified attorney can help you determine whether your own suspicions warrant further action.

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On Behalf of Zigray Law Office, LLC | Feb 24, 2020 | Probate Litigation

Challenges to a person’s mental capacity are common in a will, especially in contentious families. Many people don’t have an adequate will at the time of their physical decline. For people with dementia, writing a will with the help of family members can raise issues related to lack of testamentary capacity and undue influence. 

Family contention leading to a contested will

In a family with disputing relatives, there is a higher likelihood of a contested will. A loved one with dementia will have to prove mental competency by having ‘testamentary capacity.’ Here are the criteria that need to be met for a person with dementia to form and sign a valid will:

1. That person understands what constitutes their property.
2. That person can distinguish who their relatives and descendants are.
3. That person can decide who of those relatives and descendants should inherit property.
4. That person knows what a will is and how it generally works with regards to distributing property after death.
5. The person can combine all of these facets to understand the overall process of forming an estate plan.

Exceptions to the probate process in Ohio

There are a few examples that bypass the probate process and are less susceptible to probate litigation, as is the case when a person leaves an estate to a living spouse in its entirety (for estates less than $100,000) or if the deceased person’s assets are less than $35,000.  

Honoring your loved one’s wishes

If any of these criteria are questionable, then this opens up a will to be contested. If you believe that a relative’s will was unduly influenced or compromised by mental capacity, you need a skilled probate litigation attorney to make sure your relative’s intentions are honored.

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On Behalf of Zigray Law Office, LLC | Feb 19, 2020 | Breach Of Fiduciary Duty

There are critical ongoing discussions regarding the care of the elderly in the news on an almost daily basis. There are many good reasons why this is such a hot-button topic. Still, the two most important issues revolve around the facts that many elderly are preyed upon or abused by caregivers and that the elderly population continues to rise as baby boomers head into their retirement years.

There is no doubt that the aged will need help as they grow physically and mentally infirm. But while caregivers can feed them, dress them and provide them with assistance in daily activities, an attorney or loved one will often look after the older adult using power of attorney or guardianship.

Guardianship may be necessary

Power of attorney is a document that enables a person to become the agent for the elderly principal. The agent can oversee financial matters in an elderly person’s estate or make important decisions regarding medical care. These are useful legal tools, but guardianship takes that care further.

A parent for the elderly

The needs of an elderly person will vary, but a guardian essentially becomes a parent to the elderly or incapacitated (referred to as a ward). Examples of a guardian’s significant life decisions and responsibilities include:

• Determining where the elderly person will live
• Identifying the best course of medical care
• Arranging for social contact and recreational activities
• Buying household items, food and personal items
• Managing finances

A loss of rights

Amidst the extensive paperwork and courtroom hearings, individuals will sign away many rights in a guardianship petition (if it is voluntary), but it can also be involuntary if the courts determine that the ward is unable to care for themselves because of mental disorders, addiction or other issues.

A lot of power and responsibility

Caring for a ward takes a lot of time and effort, and it gives the guardian extensive control over the ward’s life. Ideally, they take these responsibilities seriously, but this kind of power can leave other loved ones to wonder if the guardian always has their ward’s best interests in mind.

Those with questions or concerns about guardianship should talk with an estate law attorney who understands the guardian’s role and can handle disputes in court if there are concerns about the well-being of the ward.

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How guardianship works

On Behalf of Zigray Law Office, LLC | Feb 19, 2020 | Breach Of Fiduciary Duty

There are critical ongoing discussions regarding the care of the elderly in the news on an almost daily basis. There are many good reasons why this is such a hot-button topic. Still, the two most important issues revolve around the facts that many elderly are preyed upon or abused by caregivers and that the elderly population continues to rise as baby boomers head into their retirement years.

There is no doubt that the aged will need help as they grow physically and mentally infirm. But while caregivers can feed them, dress them and provide them with assistance in daily activities, an attorney or loved one will often look after the older adult using power of attorney or guardianship.

Guardianship may be necessary

Power of attorney is a document that enables a person to become the agent for the elderly principal. The agent can oversee financial matters in an elderly person’s estate or make important decisions regarding medical care. These are useful legal tools, but guardianship takes that care further.

A parent for the elderly

The needs of an elderly person will vary, but a guardian essentially becomes a parent to the elderly or incapacitated (referred to as a ward). Examples of a guardian’s significant life decisions and responsibilities include:

• Determining where the elderly person will live
• Identifying the best course of medical care
• Arranging for social contact and recreational activities
• Buying household items, food and personal items
• Managing finances

A loss of rights

Amidst the extensive paperwork and courtroom hearings, individuals will sign away many rights in a guardianship petition (if it is voluntary), but it can also be involuntary if the courts determine that the ward is unable to care for themselves because of mental disorders, addiction or other issues.

A lot of power and responsibility

Caring for a ward takes a lot of time and effort, and it gives the guardian extensive control over the ward’s life. Ideally, they take these responsibilities seriously, but this kind of power can leave other loved ones to wonder if the guardian always has their ward’s best interests in mind.

Those with questions or concerns about guardianship should talk with an estate law attorney who understands the guardian’s role and can handle disputes in court if there are concerns about the well-being of the ward.

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On Behalf of Zigray Law Office, LLC | Feb 18, 2020 | Probate Litigation

It is quite common for a second or third marriage to be the one that carried a property owner into retirement and death. Ideally, there is the hope that the blended family with children from previous marriages and subsequent spouses functions as harmoniously as the Brady Bunch.

However, complicated estates or family relationships can lead to a variety of potential areas of dispute. The property owner may conceive and raise more children with a subsequent spouse or adopt the spouse’s children. Even without additional children, a subsequent spouse may assume control of the estate upon the death of the property owner if there are no arrangements or original plans may be revised to favor the subsequent family over the original one.

Determining a course of action

It is the best course of action to draft a legally binding estate plan that includes a will and other arrangements so the family can focus on their grieving process and supporting each other. Essential tips to remember include:

• Using a simple will is a bad idea: Leaving everything to a spouse may not make sense because it cuts children from previous marriages out of the will. This can be especially problematic if there is a family business or other assets associated with an earlier marriage.
• Consider a trust: The property owner can create a trust to ensure that spouses are cared for during their life with assets then passing to the biological children.
• An experienced trustee helps: Complicated trusts need ongoing maintenance by someone with a sound understanding of finance. A neutral trustee can also avoid appearances of bias.
• Plan for remarriage: A subsequent spouse may wish to remarry after the property owner dies, which further puts family-based assets at risk.
• Move at least some assets to children upon death: This can avoid resentment towards a stepparent.
• Identify who makes health care decisions: It is often best to pick someone who can make important decisions (aligned with the wishes of the property owner) regarding the care of an elderly or disabled parent or loved one.

Putting off these decisions can cause unnecessary harm

The death of a parent can leave families rudderless and grieving. This can lead to rash statements, feelings of alienation, and, unfortunately, radical shifts in the family dynamic. This often leads to litigation as family members fight for their beliefs of fair and equitable solutions that honor the wishes of the decedent.

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Blended families pose unique challenges for estate planning

On Behalf of Zigray Law Office, LLC | Feb 18, 2020 | Probate Litigation

It is quite common for a second or third marriage to be the one that carried a property owner into retirement and death. Ideally, there is the hope that the blended family with children from previous marriages and subsequent spouses functions as harmoniously as the Brady Bunch.

However, complicated estates or family relationships can lead to a variety of potential areas of dispute. The property owner may conceive and raise more children with a subsequent spouse or adopt the spouse’s children. Even without additional children, a subsequent spouse may assume control of the estate upon the death of the property owner if there are no arrangements or original plans may be revised to favor the subsequent family over the original one.

Determining a course of action

It is the best course of action to draft a legally binding estate plan that includes a will and other arrangements so the family can focus on their grieving process and supporting each other. Essential tips to remember include:

• Using a simple will is a bad idea: Leaving everything to a spouse may not make sense because it cuts children from previous marriages out of the will. This can be especially problematic if there is a family business or other assets associated with an earlier marriage.
• Consider a trust: The property owner can create a trust to ensure that spouses are cared for during their life with assets then passing to the biological children.
• An experienced trustee helps: Complicated trusts need ongoing maintenance by someone with a sound understanding of finance. A neutral trustee can also avoid appearances of bias.
• Plan for remarriage: A subsequent spouse may wish to remarry after the property owner dies, which further puts family-based assets at risk.
• Move at least some assets to children upon death: This can avoid resentment towards a stepparent.
• Identify who makes health care decisions: It is often best to pick someone who can make important decisions (aligned with the wishes of the property owner) regarding the care of an elderly or disabled parent or loved one.

Putting off these decisions can cause unnecessary harm

The death of a parent can leave families rudderless and grieving. This can lead to rash statements, feelings of alienation, and, unfortunately, radical shifts in the family dynamic. This often leads to litigation as family members fight for their beliefs of fair and equitable solutions that honor the wishes of the decedent.

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On Behalf of Zigray Law Office, LLC | Nov 26, 2019 | Probate Litigation

When a loved one passes away, you need time to grieve . If something unexpected happens, like not being named in their will, it can may disrupt the grieving process. Being in this situation can bring up a lot of emotion and confusion.

If you plan to contest the will, you must act fast. Ohio has one of the shortest deadlines for disputing a will at only three months from their date of passing.

What determines your ability to contest a will?

To contest a trust, you must first have legal standing. Legal standing means that you either need to be an heir named in the will or be a legal heir under intestate laws. Intestate laws govern the distribution of assets if a person passes away without a will.

Legal grounds for contesting a will

Beyond your eligibility for legal standing, the court will require you to have evidence that the will is invalid. Some of the common reasons for contesting a will include:

• Improper execution: Ohio requires the presence of two witnesses during the signing of the document.
• Testator lacking mental capacity: If your loved one did not have the mental capacity to execute their will, the will can be contested.
• Outside influence on testator: If someone pressured the testator to sign or change the will, you might be able to contest it.

Before attempting to contest a will, you might want to evaluate if the costs are worth it for you. Contesting a will can be financially and emotionally exhausting. If your potential inheritance is enough to cover legal fees by a significant amount, then you may want to combat the will in court.

Consulting with an experienced probate attorney can help you understand the complicated laws involved in probate court.

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On Behalf of Zigray Law Office, LLC | Nov 22, 2019 | Probate Litigation

Choosing how and in what form to leave your monetary legacy is a major decision. If you have a significant amount of assets, what you decide could affect the future of your beneficiaries in a big way. However, contention among beneficiaries can reduce your estate due to litigation costs or even tarnish your legacy. This makes your choice even more vital.

Which is harder to contest?

While both a will and a living trust are viable options, a trust is more difficult to contest if you think that will be a likely outcome. Beneficiaries of a trust may have a longer period in which to file a suit (two years vs. three months for a will), but it is more difficult in every other way.

A living trust vs. a standing will

Many people prefer trusts, because they can avoid probate. A living trust is active in nature. Alternatively, a will is static.

True to its name, a living trust is enacted while you are alive, which means it will be more difficult to contest on the grounds of incapacitation. A contester would have to prove that you have been incapacitated for the duration of your trust’s existence—a difficult task.

Second, a will’s assets will be frozen if it is contested, to preserve the estate. A trust’s beneficiaries, on the other hand, continue to receive the assets as planned throughout contention, honoring your wishes.

Take care to prepare your legacy with an experienced attorney, who can help you avoid these potential pitfalls with an airtight estate. Proper documentation will help preserve your wishes beyond your death.

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On Behalf of Zigray Law Office, LLC | Nov 20, 2019 | Probate Litigation

When someone dies owning property in multiple states, their estate may need to go through probate in each of those states. To many people, probate is about complex laws and calculations, the death of a loved one and court battles. The chance to have multiple probate proceedings does not help.

There is some good news for multistate probate. It may not be as bad as it sounds. And with good planning, your estate might avoid it completely.

When property is both here and there

An estate often needs “ancillary” probate if the deceased owns land or a house in another state, specifically, kinds of property governed by the laws of that other state.

Real estate is the typical case for ancillary probate because, for example, the Michigan lake cabin and the land that goes with it are part of Michigan and are subject to that state’s laws.

Usually, the guitar a parent kept at their sibling’s house in Chicago will not need ancillary probate.

Probate begins at home

Probate will need to start in the deceased’s home state, their domicile, for what is often called “domiciliary probate.”

There, the typical process has the court deciding if the will is valid and appointing an executor. The executor gathers up all the assets and pays off all the debts and distributes the remaining assets.

Ancillary probate usually gets easier

The state that hosts, for example, the person’s second home then begins its probate process (“ancillary probate”). It tends to be simpler simplified the ancillary state usually accepts the documents and decisions of the domicile state, such as their validity of the will and choice of executor.

There are many opportunities for conflict and complications, and most people hire an attorney in the second, ancillary state to keep an eye on that state’s laws and procedures.

Avoiding ancillary probate

Property owners have three ways to try to avoid ancillary probate:

• Own the property as a joint tenancy with the right of survivorship. The death of one owner instantly makes the survivor the sole owner.
• Create a living trust instructing the fate of the property upon your death.
• The ancillary state may allow a transfer-on-death deed.

These measures are, of course, things the owner must do while still alive.

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