On Behalf of Zigray Law Office, LLC | Oct 27, 2017 | blog, Probate Litigation

When there is a dispute over a person’s will, one of the questions may be if he or she had the capacity to make decisions or changes to that document. It’s not always easy to challenge a will, but if a person can prove that a lack of capacity played a role in a person’s decision making before death, then he or she could have a solid case in court.

When determining if a loved one lacked capacity, it’s vital to look into medical records. Typically, functional assessments look into a patient’s needs along with his or her physical and mental health. As people age, it’s common to see them struggle with Alzheimer’s disease or other forms of dementia.

How is a lack of capacity identified?

A person’s mental capacity is his or her ability to make rational decisions and to understand, manipulate and appreciate information. People with a lack of capacity may struggle with analyzing information, anticipating the consequences of their actions, anticipating problems or prioritizing important activities.

These actions are all affected in the early stages of Alzheimer’s disease and dementia, so being able to show that your loved one was affected could lead the courts to overturning changes made to his or her will after the date the lack of capacity was discovered.

Are there stages of Alzheimer’s disease or dementia in which a person can still make decisions?

Once a person has a diagnosis of a form of dementia, his or her ability to make decisions is immediately questioned. By the end of the early stages of dementia, the individual may need assistance performing daily tasks adequately and could need supervision for safety. Along with poor reading comprehension and memory loss, this is the point when most would agree that the person’s ability to make decisions has been hindered.

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On Behalf of Zigray Law Office, LLC | Sep 20, 2017 | blog, Probate Litigation

Typically, all but one percent of wills go through the probate process without a problem. This is because courts generally take the stance that a will is in the decedent’s voice and conveys his or her final wishes. And, since that individual can no longer speak about those wishes, Ohio courts will usually stand by the document. This can make challenging a will very difficult.

If you plan to challenge a loved one’s will, for instance your father’s, then certain grounds must exist. In other words, you must have a valid reason to bringing forth a challenge. To find out some of the most common reasons for challenging a will, read further.

Lack of capacity

In order for a will to be valid, the decedent must have had the legal capacity to draft it in the first place. This means that the individual must have been 18 years of age or older and not suffered from a mentally incapacitating state. For example, your father must not have been senile, suffered from dementia, Alzheimer’s or been under the influence of a mind-altering substance.

If you plan to challenge the will based on lack of capacity, you must be able to prove that your father did not understand what he was doing when he drafted the will or did not comprehend the significance of the will.

Manipulation and fraud

Another reason why you might try to challenge the will is if you believe that someone was manipulating your father into writing the will, or if the document is a forgery or fraudulent in some way. If there was undue influence from another source, then your father may not have been able to exercise his own will when drafting the document.

There is another will

Sometimes, people write multiple wills over the course of the years. Typically, the most recent version supersedes any earlier drafts. This means that if the probate court has an older version, you can challenge it by presenting the newer copy.

Witnesses and provisions

In order to be valid, wills must contain certain legal elements. For example, in many cases the document must include the signatures of the decedent as well as two adult witnesses that are not beneficiaries named in the will. In addition, the will must contain language that specifically states it is the will of the decedent. Also, the document should name an executor and contain instructions to pass property to a specified beneficiary. If certain legal elements are missing, you may be able to successfully challenge the document.

If you are thinking about contesting a will, it is important that you have a valid reason to take the challenge to court. Take the time to research Ohio estate laws and find out if you are eligible to challenge the document and if you have reasonable grounds to do so.

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On Behalf of Zigray Law Office, LLC | Aug 22, 2017 | blog, Probate Litigation

For as long as you can remember, your father always told you that you’d inherit the estate. You’re an only child, and you have been there for him during his time in need.

When your father passed away, you prepared to take over the estate and to take care of business. You were shocked, and rightly so, when you discovered you hadn’t inherited anything. Instead, your father had willed away the estate to someone who cared for him in the nursing home. You suspect that something isn’t right, and you may be correct. Undue influence on a person can result in changes to wills or trusts, and it can make it hard for you to inherit what is rightfully yours. Fortunately, you can contest the will if you believe that your father was influenced to change it prior to his death.

What is undue influence?

By law, undue influence is when a person deprives another of freedom of choice or substitutes his or her choice against that person’s desire. For example, if the worker who is now named in the will had appeared to your father while he was in a state of dementia, your father might have thought it was you suggesting the changes to his will. It’s very important to be able to show undue influence in court, and being able to prove your father’s inability to make good decisions due to mental impairment could help the court rule in your favor.

If you need to prove that your father was mentally impaired, you may need to present medical information to the court. Having a specialist speak to the severity of your father’s condition may also help. Once this is done, the court can decide if the inheritance should revert and be given to you as originally intended.

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On Behalf of Zigray Law Office, LLC | Jul 31, 2017 | blog, Probate Litigation

One of the things that can make moving on after a loved one’s death difficult is being unable to locate his or her assets. When you can’t locate assets, it could make it hard to finalize the estate plans. It could also mean that someone has taken advantage of your loved one, which is something you want to clear up right away.

How can you locate a decedent’s hidden or missing assets? There are a few different things you can try including looking at your loved one’s personal paperwork, safes and other potential hiding spots.

1. Looking in paperwork gives you clues

When you look through a person’s documents, they can give you an idea about what kinds of assets the person had. If there is a large transaction at an unusual point or you find a key to a lock box, then that might be the hint you need to locate the assets you were trying to find.

2. Check out personal safes

If you find a key to a safe at a bank, or if you know there is a safe at the home that has been unopened, it’s time to look inside for the assets that are missing. Whether it’s money or antiques, many people hide assets that are valuable in safes. You may even find hidden safes in the floors of the home, behind (or in) books, in closets or other unusual locations.

3. Seek assets in unusual hiding spots

Have you never been into the basement of your mom or dad’s house? Now might be a good time to look. Has the fireplace oddly never worked for years? There could be a reason your parents refused to turn it on. Check unusual spots for assets, and you may end up turning up something you didn’t expect.

These are a few places you can look for hidden assets. Give it a shot, and see what you turn up.

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On Behalf of Zigray Law Office, LLC | Jun 27, 2017 | blog, Probate Litigation

The last thing anyone wants to see happen after your death is an inheritance dispute. You want to leave behind something for your beneficiaries, and having them fight among themselves is not your idea of how your family should treat one another.

There are a couple things you can do to help your family avoid disputes. With the help of your attorney, you can make sure there’s as little risk of a dispute as possible, so your family can receive what you wanted to gift to them and focus more on their emotional healing.

1. Get an iron-clad will

While you’re in the mind to do so, it’s a good idea to create a will that is not in any way debatable. The first thing to do is to make sure you create a valid will. After that, you’ll want to include your age, testamentary capacity to show you were of sound mind and body when you created the will, and to show voluntariness, which is a lack of coercion.

After this, you need to list all your assets and assign them to the heirs you have. The will should be written in such a way that the language is clear to understand. Finally, sign and date the document. You’ll need a witness document included as well to show that someone else was there to watch you sign the document.

2. Create a living will

When you have a living will, it provides a number of instructions to your family. It talks about things like the care you want to receive if you are incapacitated and helps you appoint a durable power of attorney, or a person who makes decisions on your behalf if you are unable to.

Since you have to designate these people and your wishes while you’re alive and of sound mind, it’s much easier to show exactly what you want and to enforce those wishes after death.

Choosing the right will now can help your family later. Your attorney can create a document that helps you secure your wishes.

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On Behalf of Zigray Law Office, LLC | May 23, 2017 | blog

You create a trust knowing that someone has to carry out the duties of the trust after you pass away. That individual has a fiduciary duty to you, your beneficiaries and the trust itself. You expect that individual to make good decisions and to engage in acts that grow the trust or dole it out fairly.

If a trustee does not work in the beneficiaries’ best interests, it’s said that the individual is in breach of his or her fiduciary duties. If a person breaches his or her duties, that individual could face a lawsuit from the parties affected by the breach.

What is fiduciary duty?

In layman’s terms, fiduciary duty is the duty of a trustee to make decisions and to administer a trust in the interests of the beneficiary. For example, a trustee who has been trusted to invest for the beneficiary should invest carefully and take few risks, so the investments do end up benefiting the individual. If that same trustee invests everything into one risky stock and loses everything, then it can be argued that he or she did not work in the best interests of the beneficiary.

What is a trustee’s duty to a beneficiary?

The trustee has a duty to administer the trust in a way that benefits the beneficiary. He or she needs to preserve the trust’s property as much as possible and keep clear accounts of transactions that take place. If the person is instead an estate representative, then that individual needs to act fairly and fully disclose his or her actions to all beneficiaries of an estate. The representative has a duty to protect the estate and to benefit both the creditors of the estate and the heirs of the estate.

What can you do if your trustee or estate representative breached his or her fiduciary duties?

You can bring a lawsuit against the individual. Your attorney can help you prove that the trustee or representative had a duty to you, the beneficiary, that he or she breached that duty, and that you suffered financial loses as a result. If you can show all three factors clearly, the court has the potential to rule in your favor.

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Determining a lack of capacity in estate disputes

On Behalf of Zigray Law Office, LLC | Apr 25, 2017 | blog, Probate Litigation

Your father got older and had to move into a nursing home. You already knew he had a will, and he had set up a trust for your children, his grandchildren. You thought everything was ready and prepared, but when your father passed away, you were shocked to find that the trust had been altered and placed into the name of a worker at the facility where he was treated.

How could that happen? Your father had dementia, and there is no way he had the mental capacity needed to make that decision. What can you do?

This is a situation where it is a good idea to get your lawyer involved. When your father created a will and trust for your family, it was a legal contract. Now, the changes are technically legal as well, but not if you can prove that he was unable to make the decision to change the trust.

What do you need to show to prove that he was unable to make the decision?

You’ll need to prove that he had a lack of capacity. A person who doesn’t understand what he or she is doing cannot enter a legal contract with another party. In this case, your father might have thought the worker was a family member or his attorney and signed documents he was confused about. That makes the entire contract null and void, returning it to the previous state when he was legally able to create the trust in a binding form.

Can you pursue a claim against a person who made your father sign a new contract while he was lacking the capacity to do so?

If someone has made false statements, threats or coerced your father to sign documents, then the court can void the contract. You may also consider pursuing a claim against the party who took advantage of your father. It’s a good idea to have documentation to prove that your father was unable to make a coherent decision, either by showing he was affected by dementia or other conditions that made it hard for him to know what he was doing.

Your attorney can help you move forward with a claim against a person who took advantage of your father and help you have the trust returned to its rightful owners. It’s not acceptable for someone to use people’s disabilities or declining health against them.

Source: Nov. 30, -0001

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Was a financial claim filed against your loved one’s estate?

On Behalf of Zigray Law Office, LLC | Apr 12, 2017 | Probate Litigation

When your loved one dies, his or her estate will go through the probate process. If there’s a will on file, after probate, the executor of the estate will distribute the assets according to the distribution plan laid out in the will. If there’s no will on file, the assets will be divided according to Ohio intestacy laws.

During probate, creditors to whom the deceased owed money may file claims against the estate for money owed. Let’s say a lender comes forward and claims your deceased father owed him or her $200,000 related to a business deal. Whether the estate pays the claim depends on its viability.

Example of a recent creditor claim against an estate

In the case of deceased pop star Prince, there has been a lot of confusion about the distribution of his assets – mainly because he died without an estate plan. In addition to the numerous potential heirs who have come forward, creditors have also made their claims against the estate.

In a recent filing by a creditor, a former lawyer – who represented Prince in his divorce – has filed a claim for unpaid bills. Lawyers representing the estate denied the claim, saying it was too old to pay as the claim involved a 10-year-old debt.

There was also another problem with the $559,000 claim for services rendered: It did not include any proof or itemization. According to the attorneys representing the trust, they have requested documentation and proof of the bill.

Ultimately, it’s possible that the court will deny the claim for payment due to a 6-year statute of limitation on debt collection in the state of Minnesota, where the estate is being probated. In the state of Ohio, a similar 6-year statute of limitation applies to all debt collection activities. The judge hasn’t ruled on the matter yet.

Defending an estate against creditor claims

Not all creditors’ claims against an estate are legitimate. Heirs and family members can sometimes save hundreds of thousands of dollars – or more – if they can successfully defend an estate against illegitimate claims. With the aid of an experienced probate litigation lawyer, Ohio residents can formulate a plan of action in this regard.

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On Behalf of Zigray Law Office, LLC | Feb 24, 2017 | Breach Of Fiduciary Duty

The death of a parent is never easy. When significant assets are involved, siblings may have disagreements over how the family legacy should be handled. Even when a parent has created an elaborate plan to pass the family company and other assets on to the children, heated disputes may erupt into litigation. Our Toledo area readers may have missed a story from another Great Lakes state that highlights how a detailed estate plan may not always protect against sibling rivalry.

The patriarch of the family took great care to create a will and various trusts to provide for his children, as well as the wife of one of his sons who had passed away. He also created a charitable foundation in honor of his late wife. His estate documents provided the charity with a $4.5 million gift.

Equal Ownership Interests, But Not Equal Decision-Making Authority

The man had started a business in 1978 that appears to be the main source of contention is the legal battle. The five siblings and their sister-in-law were each given equal ownership interests in the multi-million dollar entity, through trust documents related to the business. However, one sister was named trustee and given exclusive control of the 100 shares of voting stock.

Some of the siblings argued that the structure of the trust shows that their father’s intent was to have assets sold to provide for all of the heirs. The sister who was given control argued that the elaborate estate plan shows that her father wanted the company and other assets to be kept in the family.

The woman with the controlling interest in the business reportedly stated that she had no intention of selling any of the assets under her exclusive control, and the business would pay no dividends, according to the lawsuit. Her four siblings and sister-in-law who were given ownership interests without any control over the company began to feel that they were essentially cut off from their inheritance rights.

Well-Constructed Plans Are Not Immune From Disputes

Trusts and other estate planning documents related to family businesses, as well as vacation homes and other family assets, often include provisions that are intended to avoid disputes and sibling rivalry. If one sibling wants to sell an asset, the trust documents, for instance, may outline how disputes should be handled.

Here, one person was given the sole authority to make decisions. Her siblings believed that meant that she had a fiduciary duty to ensure that they received their inheritance as their father intended, which included the duty to sell assets, if necessary. She believed that the overall structure showed his sole intent on keeping the business running — and to keep it in the family.

In the end, the court did not decide the issues as the parties agreed to sell the business to settle the probate and trust litigation.

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On Behalf of Zigray Law Office, LLC | Feb 9, 2017 | Probate Litigation

The death of a loved one is never easy. When the family member leaves behind an estate with unfinished business, the sorrow of death is only compounded. While the reasons family members fight in probate court are complex and varied, these are the top five, according to Wealth Management:

1. Local Family Member vs. Distant Family Member

When one family member is local to the deceased and another is distant — whether emotionally or physically — the local family member tends to feel entitled to a larger portion of the estate. Some may even attempt to be added to checking accounts under the guise of convenience when in actuality they are attempting to gain control over the person’s finances.

2. The “Late-In-Life Spouse” Takes Over

No one blames a person for taking a spouse later in life, but these late-in-life spouses are often at the root of probate problems. The truth is, there are some young people who prey on the loneliness of the elderly in order to have access to their estate once they pass on. Will contests tend to spring from last-minute changes to the wills, undue influence on the estate holder, and any changes to exclude certain family members. These tend to be more common with late-in-life spouses in the picture.

3. Multiple Marriages And Blended Families

Second marriages, children from previous relationships, and step-children often complicate seemingly simple estate distribution. While many spouses create wills that intend to divide assets evenly amongst all children upon the death of both spouses, it often requires a transfer of all of the assets from one spouse to the other upon one of their deaths. If the remaining spouse loses touch with their step-children, or becomes estranged from the deceased’s biological family, it becomes difficult to carry out the original intent of the will.

4. The Opportunist Caregiver

In the absence of a relative to care for the elderly family member, they often turn to caregivers near the end of their lives. As a result, many decide to sign some or all of their estate over to caregivers instead of to estranged family members. While many caregivers have pure intentions, this relationship opens the door for opportunists to harangue the individual.

5. Assets Were Concealed

Refusing to deliver assets that someone has inherited is against the law. That does not mean people don’t try to hide money or property during the execution of the deceased’s will.

While some probate disputes can be solved without litigation, it is important to discuss your case with an experienced litigator who is well versed in Ohio probate law.

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