On Behalf of Zigray Law Office, LLC | Jul 19, 2018 | Probate Litigation

You loved your parents very much, and when they passed away, you knew you’d be left with many of the assets they owned. What happened next was nothing you could have ever expected. Instead of receiving information about assets that would be distributed to you, you found that many of the assets were being given to the family’s newest friend.

That friend was not someone you were comfortable with, and he got a little too close to your parents for comfort. You felt like there was something off with him, and now you think that he manipulated your parents into changing the will and estate plan. Due to undue influence and the fact that your parents struggled with dementia and the inability to make sound decisions, you want to challenge the changes to the estate. Can you?

Capacity is key in a contract

A will is a contract, and a person has to be in his or her right mind to sign any contract and have it hold up in court. The capacity to contract refers to a person’s ability to understand and form a contract. A person who has a mental impairment or who is too old to fully comprehend a contract cannot legally enter into one. If he or she lacks capacity to contract upon signing the document, then you’d have every right to fight those changes in court.

In your case, you feel there is also undue influence. Coercing someone to alter a will or threatening a person to do so is against the law and can invalidate a will.

What can you do to fight against changes in a will?

You’ll want to build a strong case. If you have a copy of a previous will, it would be good to show when it was made and updated. Also include information on when the new will was made and updated and if your mother or father was in the medical state to sign it and be bound by that contract.

To prove that your loved one was not able to sign the contract, you may wish to talk to a medical provider who can confirm a diagnosis for dementia or other mental health disorders. If you can show to the court that your loved one should not have been able to sign a contract due to a lack of capacity, then you may be able to have the new will invalidated.

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On Behalf of Zigray Law Office, LLC | Jul 19, 2018 | Probate Litigation

You loved your parents very much, and when they passed away, you knew you’d be left with many of the assets they owned. What happened next was nothing you could have ever expected. Instead of receiving information about assets that would be distributed to you, you found that many of the assets were being given to the family’s newest friend.

That friend was not someone you were comfortable with, and he got a little too close to your parents for comfort. You felt like there was something off with him, and now you think that he manipulated your parents into changing the will and estate plan. Due to undue influence and the fact that your parents struggled with dementia and the inability to make sound decisions, you want to challenge the changes to the estate. Can you?

Capacity is key in a contract

A will is a contract, and a person has to be in his or her right mind to sign any contract and have it hold up in court. The capacity to contract refers to a person’s ability to understand and form a contract. A person who has a mental impairment or who is too old to fully comprehend a contract cannot legally enter into one. If he or she lacks capacity to contract upon signing the document, then you’d have every right to fight those changes in court.

In your case, you feel there is also undue influence. Coercing someone to alter a will or threatening a person to do so is against the law and can invalidate a will.

What can you do to fight against changes in a will?

You’ll want to build a strong case. If you have a copy of a previous will, it would be good to show when it was made and updated. Also include information on when the new will was made and updated and if your mother or father was in the medical state to sign it and be bound by that contract.

To prove that your loved one was not able to sign the contract, you may wish to talk to a medical provider who can confirm a diagnosis for dementia or other mental health disorders. If you can show to the court that your loved one should not have been able to sign a contract due to a lack of capacity, then you may be able to have the new will invalidated.

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On Behalf of Zigray Law Office, LLC | Jun 20, 2018 | Probate Litigation

There are a number of circumstances under which you might want to challenge a will. While the majority of wills go through probate with no issues at all, there are times when family members and beneficiaries may have concerns about the decedent’s will.

Since the will is designed to speak for a person who is no longer living, it’s vital that it’s upheld as it was intended. However, if a person was manipulated, threatened or otherwise forced to write or alter their will, there could be a reason to challenge it.

One thing you may want to challenge is testamentary capacity. Another is forgery or fraud. Finally, you can challenge a will if there is a second will in your possession that is more recent.

Challenging testamentary capacity

When you challenge the testamentary capacity of a parent or loved one, you are alleging that the individual lacked the ability to write or make changes to their will. You could argue that the person didn’t fully understand the way those changes will affect him or her or any beneficiaries. For instance, if your loved one had dementia, he or she may reach a point where it’s impossible for him or her to understand the implication of any changes made to the will. In that case, it would be irresponsible for an attorney to allow said changes.

Challenging on the basis of fraud

Are you convinced that someone took another individual in your parent’s place to sign changes to a will? Did someone threaten your loved one into changing the will? With evidence of wrongdoing, you may be able to challenge the will for fraud, forgery or undue influence, helping you overturn the changes. The court takes these allegations seriously, so make sure you have solid evidence to back your claims.

Challenging a will due to another will

Sometimes, a court may end up with an older version of a will, making it vital to introduce the most recent will to guarantee the intended distribution of assets. If you are unable to produce the newer version before or during probate, you will want to file a challenge so that you can make sure the new will is used.

These are three situations in which you may wish to challenge a will. Normally, courts do not allow challenges without good reason, because they want to uphold the decedent’s wishes. However, the above situations could make it necessary to file a challenge and protect your loved one’s interests.

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On Behalf of Zigray Law Office, LLC | May 21, 2018 | Probate Litigation

Wills are there to protect a person’s assets as well as to provide for heirs and beneficiaries. For many, the will gives them a chance to give orders and requests for the time following death.

Unfortunately, this legal document could be influenced by someone outside the family or intended heirs, causing trouble upon the elder’s death. Here are three red flags to look for.

1. A new or unheard of party is listed in the will

The first thing that might trigger a concern about undue influence is if the will changed and now includes a new person whom you’ve never heard of or who only recently befriended your parent. It’s possible that this new person manipulated or coerced your parent into changing his or her will, so that the party would benefit from his or her death.

That’s not to say that everyone in a will is going to be someone you know or that your parent doesn’t have a right to add someone at the last minute. Keep in mind the person’s relationship with your parent and the length of time it was known.

2. The will changed since your parent last updated you

If your parent regularly updated you on changes to the will, it’s a good idea to look into any changes that happened since your last update. If you signed as a witness, for example, only a year ago but see a new witness and changes to the will in the newest form, you may wish to discuss what happened with your parent’s attorney and then your own. There could be a party who influenced your loved one to change his or her will unexpectedly.

3. The will is not what you expected

The reality is that not every will is going to be what the heirs expect. For instance, a parent with a great deal of money may wish to make his or her heirs work for theirs, gifting a majority of the assets to charity instead of to the heirs. Likewise, a favored child might end up with more than the others despite doing less for the parent in his or her old age.

Keep in mind that this is relatively normal, but if there are changes that don’t add up, you might want to take a closer look. For example, a child who hasn’t spoken to a parent in 15 or 20 years may suddenly appear on the will, which would be unusual particularly if the parent was disowning or negative about the potential heir.

There are always ways for people to cause undue influence, and someone might try with a person you love. Keep an eye out for unusual changes to a will, and investigate them if they occur.

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On Behalf of Zigray Law Office, LLC | Apr 20, 2018 | blog

Challenging a will is easier said than done, as you need to have a reason to move forward with the process. In other words, people can’t contest a will because they feel like they didn’t receive what they deserve.

There are many grounds for contesting a will, with testamentary capacity often at the top of the list.

There is a lot to learn with respect to testamentary capacity, especially if you have reason to believe this has come into play due to the creation of a will.

It’s presumed that all adults over the age of 18 have testamentary capacity. However, this is not always the case.

When it comes to contesting a will, you may stress that the person did not have testamentary capacity, but in some way lacked the mental capacity to create a will. This can be on the basis of dementia, senility, insanity or even the influence of an outside substance.

Of course, there is a big difference between saying a person didn’t have testamentary capacity and actually proving this to be true. Challenging a will on this basis means showing that the testator did not understand what he or she was doing. When creating a will, the person must understand:

• The type of property and value of property they own
• The beneficiaries of the will
• What it means to create a will (and what happens upon their death)
• How a will impacts the distribution of property upon their death

It’s possible that testamentary capacity could come into play alongside other grounds for challenging a will, such as fraud, forgery, undue influence or insufficient witnesses.

It goes without saying that no one creates a will with the idea that it will be the center of a legal dispute in the future. However, this often comes into play, especially if a loved one believes that issues of testamentary capacity were present.

If you want to push forward with a will contest, it’s important to learn more about the legal process and the steps you need to take. There is a lot that goes into this, and taking the right steps will have a lot to do with how the process unfolds.

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What might make a will challengeable?

On Behalf of Zigray Law Office, LLC | Mar 21, 2018 | blog

When a person dies with a will, it generally controls the distribution of their estate. However, it only does this if it is valid. There are a variety of things that could potentially invalidate a will or some of its provisions. When these factors are present, they can be grounds for challenging a will. Will challenges, and how they are resolved, can have major impacts for families and other beneficiaries.

The ability of the testator to create a will

One of the most common issues that can touch on the validity of a will is whether the will’s creator, or testator, had the legal ability to create the will in the first place. Several circumstances may preclude an individual from legally creating a will. A will may prove invalid if:

• The testator was not old enough to legally create the will, typically at least 18 years of age.
• The testator lacked “testamentary capacity,” meaning he or she did not possess the mental capacity to create the will.
• The testator did not create the document voluntarily, or did so under duress.
• The testator did not have clear intent toward creating a will.

The execution of the document

Even if the testator was legally capable of creating a valid will, if the will was not properly executed, it might be invalid. In some instances, this means that the will is not signed and dated by the testator in the presence of two witnesses. For the purposes of the law, they must be “disinterested parties,” meaning two individuals who meet the legal requirements to serve as witnesses (legal age, sound mind, etc.), and also do not stand to benefit from the provisions of the will itself.

Similarly, if the will contains terms or provisions that do not align with the law, then the will may not withstand scrutiny.

Address your concerns directly

When there appear to be questions about a will’s validity, depending on your relationship to the will in question, you may need to do some detailed research about the laws that apply in your circumstances and the legal options you have to protect your position. Be sure to consider all your options before you move forward, keeping in mind that it can be risky to wait too long to respond to a will challenge or make a challenge of your own.

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On Behalf of Zigray Law Office, LLC | Feb 20, 2018 | blog

When a loved one passes away, the last thing you want to do is mire the estate in court without good reason. In fact, many people may overlook inappropriate or questionable behavior by an executor or trustee in good faith, assuming that person is simply doing the best he or she can for the situation.

Sometimes, however, serious mistakes, oversights or attempts to profit from the estate could necessitate bringing a challenge. In many respects, the estate plan, trust or last will is the final legacy of your loved one. He or she went through the effort to create the plan in the belief that those wishes would be accurately and carefully executed. Incompetence or greed should not diminish the legacy of someone you love.

What is breach of fiduciary duty?

At its most basic, fiduciary duty is an obligation of trust. The person serving as trustee or executor has a fiduciary duty to the beneficiaries of the will, as well as the deceased, to comply with last wishes and perform the duties of that role with a focus on the benefit of the trust or the heirs.

When someone in a position of trust makes mistakes or acts in self-interest, it can impact everyone who should benefit from the estate. When it becomes clear that the person cannot live up to the responsibilities of the role, other family members must ask the courts to intervene to protect the legacy of the deceased.

Sometimes, the breach or failure is unintentional

There’s no doubt that handling an estate, especially one with significant assets, is a difficult and overwhelming process for many. Even someone who is normally competent and hard-working, while moving through the grieving process, could struggle with all the details and demands.

It is also possible for grief, distance or other issues to result in long-term delays. If the executor lives in another city or state or has another family member in need of care, that could delay the handling of critical matters, from paying local taxes to ensuring a property receives maintenance until it sells. Any of those delays could cost the trust or estate substantial money, which could impact the heirs and beneficiaries.

Some breaches are intentional for personal gain

Sadly, it is all too common for those entrusted with the administration of an estate to attempt unscrupulous things for their own benefit. They could hide or steal assets to sell after the estate closes. Other times, they could intentionally sell items for far below market value to someone who will split the difference with them later.

If there are any signs of intentional theft or similar questionable behaviors from an executor or trustee, you may need to challenge the administration of the estate to prevent the loss of valuable assets.

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On Behalf of Zigray Law Office, LLC | Jan 19, 2018 | blog

The role of trustee comes with some very serious responsibilities. For example, if you are the beneficiary of a trust, you will expect the trustee to make financial decisions for the trust that are in the best interests of you and any other beneficiaries. Because of this high level of trust that beneficiaries must have in trustees, the law holds trustees to a very high standard.

In general, there are several people that have the power to remove a trustee who is not adequately performing his or her duties. This usually includes the beneficiaries, the court and any other individuals that the trust documents grant this power to. There are several reasons why you should remove a trustee.

Not adhering to the terms of the trust

One of the reasons why you, as a beneficiary, might be able to remove a trustee is for failure to follow the directions of the trust. If the trust grants you and any other beneficiaries the power to remove the trustee, then you can remove the trustee. If the trust does not allow you this power, then you can petition the probate court in Maumee that has jurisdiction to remove the trustee.

Inability to meet obligations

Trust documents usually specify the kind of obligations and duties the trustee has in relation to the trust. If the trustee cannot fulfill these obligations, then this is usually a good reason to remove the individual.

Conflicts of interest

In general, the trustee shouldn’t benefit financially from administering the trust. If the trustee is controlling the assets and making decisions that will benefit him or her instead of the beneficiaries, then it is time to remove the trustee’s authority. Either the beneficiaries or the court can take steps to oust the trustee in order to protect the trust.

If you are the beneficiary of a trust and you believe that the trustee is not acting in the best interests of the beneficiaries, then you may be able to remove the trustee. In addition, you might be able to take legal action if the trustee has defrauded the beneficiaries or misused the trust’s assets.

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On Behalf of Zigray Law Office, LLC | Dec 21, 2017 | blog, Probate Litigation

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.

You are named in the will

If you are named in the will, you can challenge it. This category doesn’t include only family members of the person who passed away. It also includes entities, such as charities, that stand to receive part of the inheritance. Friends can also contest a will if they are named.

Interestingly, it is possible for a pet to contest a will if the pet is named in it. Adding a pet to an estate plan isn’t all that common, but it is a way that the pet owner can ensure one’s beloved companion is taken care of.

You were named in a previous will

People update their wills as life’s circumstances change. Sometimes, this means that a person will be removed from the will. You have an option to challenge the will if you were taken out or if what you will receive has changed. The key point is that the previous will must have been valid.

You would qualify as an heir

Even if you weren’t included in a prior will and aren’t named in the current one, you can still challenge the will if you would have been an heir if the person died without an estate plan. You have to review state laws about the chain of heirs when a person dies intestate.

Presence of an exclusion

In some cases, a person will disinherit someone out of one’s estate plan. He or she might write a person out of the will. When this happens, the validity of the will is what determines the outcome. There is a chance that the will might be found invalid if there was an element of undue influence or lack of capacity.

You should think carefully before you challenge a will. Often, your family dynamic will change if you fight the will. You need to determine if what you feel you are entitled to is worth the battle with your family.

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On Behalf of Zigray Law Office, LLC | Nov 30, 2017 | blog, Probate Litigation

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.

With probate for intestate succession, the process is overseen by a probate court. It is up to the court to decide how to distribute assets, while also holding probate hearings.

It’s important for loved ones to become familiar with this process, as it helps you better understand the distribution of property and if you have the right to receive anything.

The identification of heirs

When there is no will in place, state laws determine who receives the property after the person’s death. Generally speaking, there are classes of heirs that determine the order of distribution as well as how much each person will receive.

In most cases, surviving spouses and children come first, followed by parents and any other blood relatives who are still living.

Once the identification of heirs is complete, the court then makes a final decision on which assets to distribute and how to get them into the hands of the appropriate party.

In the end, the probate court is responsible for any final accounting measures and issuing a discharge order. At that point, the probate process comes to its conclusion and the case is closed for good.

If a loved one passes on without a will, there are several things you need to do. In addition to learning more about your state’s intestate succession laws, you should focus on your legal rights.

For example, if you think the person created a will, it may be in your best interest to find it and provide it to the court. As long as you understand your legal rights and where you fit into the process, you can be confident in your ability to receive the assets you’re entitled to.

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