On Behalf of Zigray Law Office, LLC | Apr 23, 2024 | Breach Of Fiduciary Duty

In many situations involving a person’s estate, you may hear the term “fiduciary duty.” This is a duty that someone may have regarding another individual or a portion of their estate. Essentially, the fiduciary has a legal responsibility that they are supposed to uphold

For example, perhaps two parents made a trust and put money in it for their children. They then named a trustee. After the parents pass away, the trustee has a fiduciary duty. They are supposed to administer that trust and so they have the right to handle and distribute the assets in the trust in accordance with the directions that were provided. No one else has this duty, so they are not responsible for how the money is distributed and they are not even authorized to access the account.

Why could this be a problem?

This can create disputes when the fiduciary is accused of breaching this duty.

For example, say that the trustee begins to remove money from the account to use for their own purposes. They were supposed to use the money to benefit the children, perhaps by paying for college tuition or something of this nature. But they are breaching that duty by using the money for personal gain.

But it doesn’t necessarily have to be that drastic. If the beneficiary simply wanted a distribution from the trust and was denied when they felt that the reason for the distribution was valid, then they may claim that the trustee breached their fiduciary duty by refusing that distribution.

In other words, these situations can get to be very complex from a legal standpoint. It is important for those who are involved to understand exactly what steps they can take to find a resolution.

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On Behalf of Zigray Law Office, LLC | Apr 14, 2024 | Probate Litigation

The needs of modern estate planning efforts have expanded beyond “traditional” physical assets and financial accounts to include a range of digital property and investments. As such, social media accounts, digital wallets, online businesses and virtual assets now all demand attention during the estate planning process. 

However, partially due to the speed with which the estate planning landscape has changed over the past 20 years or so, many individuals still overlook these digital assets when planning their estates, which can lead to complex probate litigation concerns after they pass away.

What’s the big deal?

The primary risk of inadequate digital estate planning is that digital assets may not be properly accounted for in a person’s will or estate plan. This oversight can lead to uncertainty and disputes among heirs or beneficiaries about who has the right to access or control these digital assets. Unlike traditional assets, digital assets often require specific usernames, passwords and even encryption keys to access. Without clear directions and lawful access protocols, these assets can become effectively inaccessible, or worse, subject to unauthorized access and misuse.

Moreover, the laws governing digital assets are still evolving. Many jurisdictions lack clear legal frameworks addressing the inheritance of digital content, further complicating the administration of these assets during probate. This ambiguity can lead to significant legal challenges. For instance, if a deceased person owned an online business or held substantial digital currency, the absence of explicit instructions for these assets can trigger disputes among beneficiaries, potentially leading to costly and prolonged litigation.

Probate litigation concerning digital assets can be particularly contentious because of the high value and unique nature of these assets. For example, a dispute over the control of a popular social media profile or a profitable blog can raise complex issues about intellectual property rights and the commercial value of digital content. Additionally, if a decedent used online platforms for significant financial transactions or held investments in digital currencies, the stakes are even higher, and the probate process can become a battleground for those claiming a right to these digital fortunes.

To mitigate the risk of probate litigation, estate planning should include detailed instructions about each digital asset, designate digital executors and work to ensure that all legal guidelines are followed to grant those individuals proper access and control rights. 

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On Behalf of Zigray Law Office, LLC | Mar 29, 2024 | Probate Litigation

The process of probate can be a lengthy and costly legal procedure that can tie up assets and delay the distribution of an estate to beneficiaries. While it is sometimes a necessary inconvenience, you may not want to have your estate go through probate due to privacy concerns, the desire for a more efficient transfer of assets to your heirs or to minimize the potential for family disputes over inheritance.

There are several ways you can proactively plan your estate to avoid probate and to better ensure a smooth transfer of assets directly to your beneficiaries.

Joint ownership

Joint ownership is one effective way of avoiding probate and facilitating the direct transfer of assets. By holding property jointly with rights of survivorship such as joint tenancy with right of survivorship or tenancy by the entirety for married couples, ownership automatically passes to the surviving joint owner(s) upon the death of one owner.

Payable-on-death-accounts

These are accounts that allow you to designate beneficiaries who will receive the funds directly upon your death without the need for probate. Common types of payable-on-death (POD) accounts include bank accounts, certificates of deposit (CDs) and brokerage accounts.

Establish a living trust

A living trust allows you to transfer ownership of assets into the trust during your lifetime, with detailed instructions on how those assets should be managed and distributed after your death. When you place assets in a revocable living trust, you retain control over them while alive but upon your death or incapacitation, the trust assets can pass directly to the beneficiaries named in the trust document, bypassing probate.

Gifting assets

You can also proactively transfer assets during your lifetime through gifting. By gifting assets to your intended beneficiaries before your death, you can reduce the size of your estate subject to probate. This can be particularly useful for assets with sentimental value or those you anticipate causing disputes among heirs.

Regardless of which option or options sound intriguing, you should strongly consider getting legal guidance to help ensure that the estate planning strategies you choose align with your specific circumstances and goals, and that they comply with relevant laws and regulations.

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On Behalf of Zigray Law Office, LLC | Mar 21, 2024 | Trust Contests

When a person establishes a trust, they must name a trustee to care for the trust. Trustees have specific duties and must comply with certain standards.

While trust administration usually evolves without any issues, there are times when problems arise. At that point, those who have an interest in the trust may choose to challenge the trustee so the court can step in to determine what, if any, action needs to be taken.

Breach of fiduciary duty

One of the primary reasons to challenge a trustee in Ohio is if there is a breach of fiduciary duty. Trustees are legally obligated to act in the best interest of the trust and its beneficiaries by adhering to the terms outlined in the trust document.

A breach of fiduciary duty could involve mismanagement of trust assets, failure to distribute assets according to the trust terms, self-dealing or making investment decisions that don’t align with the beneficiaries’ best interests.

Lack of transparency or communication

Beneficiaries have the right to be reasonably informed about the trust’s affairs and to receive regular accounting reports from the trustee. If a trustee fails to provide necessary information, communicate effectively or offer transparency regarding the trust management, beneficiaries might have cause to challenge their actions.

Incompetence or incapacity

A trustee must be capable of managing the trust’s affairs effectively. If a trustee is no longer competent or capable of fulfilling their duties due to mental incapacity, physical illness or a lack of necessary skills, beneficiaries may seek to have them removed.

Conflict of interest

A trustee can’t engage in transactions that could benefit them personally at the expense of the trust or its beneficiaries. If a trustee is found to have a conflict of interest that affects their ability to administer the trust impartially, beneficiaries have grounds to challenge the trustee.

Other reasons to challenge a trustee may also be valid. Discussing one’s case with a legal representative who can explain the options available and assist with the matter can benefit beneficiaries who want a trust creator’s wishes to be properly followed.

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On Behalf of Zigray Law Office, LLC | Mar 15, 2024 | Will Contests

A will is a legal document that provides instructions on how your assets should be divided upon your death. While the document itself is important, the people involved in managing your assets are also vital.

The executor of your will is the person responsible for ensuring that your instructions are followed through. How do you go about choosing the right person for the job?

Consider their age and health

Ideally, the executor should be younger than you. This makes it far more likely that they are still around and fit to carry out your instructions upon your death.

Consider where they are

Probate will take place in the state in which you drafted your will. The executor may need to meet with other professionals involved in your estate plan as well as your beneficiaries and heirs. In practical terms, fulfilling these duties will be much easier if they live close by.

Ask them if they want to do it

Being an executor requires a lot of commitment and it is a big responsibility. Not everyone will be up for the task. That’s why it’s important to have a discussion with your chosen executor before making any final decisions. You want your executor to be dedicated and committed to acting in the best interests of the beneficiaries.

Ideally, your chosen executor should be impartial. This will help to prevent complications and will contests. Remember, you can change your will and executor at any time you feel these are necessary steps. Having legal guidance on your side can help you to make the right decisions.

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On Behalf of Zigray Law Office, LLC | Feb 28, 2024 | Probate Litigation

A loved one’s death can set the ball rolling for a lot of things. Amidst planning their funeral and other paperwork, you must also figure out what will happen to their estate. And this is where probate comes in. 

Probate is the process of gathering the decedent’s assets, identifying their dependents, paying off their debts and applicable estate taxes and distributing what is left per their will or Ohio intestacy laws if they died without a will. Of course, this can be a long and tedious process. But exactly how long does it take to probate an estate?

Factors affecting the probate process

The time it takes to probate an estate depends on several factors. Here are some of them:

The complexity of the decedent’s estate

Estate size is a crucial factor during probate. A relatively small estate with one or two heirs (who are getting along with each other) is generally easy to probate. Depending on the court’s schedule, such an estate can take a couple of weeks to probate. 

A large and complex estate, on the other hand, is a different story, especially if some of the assets are across the state. Such an estate can take several years to probate. 

The presence of the will

If the decedent dies intestate, it might take time before the court appoints an administrator for their estate. Additionally, potential heirs might disagree on what everyone ought to get. This, coupled with the lack of a clear will not only prolongs probate but can also rack up the cost of probating the decedent’s estate. 

The presence of a valid will, however, can clear up any confusion and make the process faster and smoother. 

The probate process can be extremely overwhelming, especially when you are still in grief. Understanding the legal requirements can ensure that you stay on track while probating a loved one’s estate. 

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On Behalf of Zigray Law Office, LLC | Feb 14, 2024 | Probate Litigation

Crafting an estate plan feels like future-proofing your loved ones’ inheritance. But even the most meticulous plans can detonate in probate court thanks to hidden issues.

Below are two common culprits that increase the risk of probate litigation:

1. Family feuds can erupt over fortunes

Disgruntled heirs often trigger probate wars. They may doubt the will’s validity, accuse beneficiaries of undue influence or challenge asset distribution.

Defuse the bomb. Clarity is your best defense. Ensure your will clearly and unambiguously expresses your wishes. Consider a no-contest clause to deter frivolous challenges.

Open communication with family members about your plan can also prevent misunderstandings. Remember, a little transparency goes a long way in forestalling emotional explosions.

2. Creditors come knocking

Outstanding debts at your passing can be like ticking time bombs. Creditors can contest your will if they feel short-changed, throwing your estate and family into legal limbo.

Cut the fuse. Proactive financial planning is crucial. Prioritize managing debts during your lifetime. Explore debt repayment strategies in your estate plan or designate specific funds to settle outstanding balances.

Remember, financial prudence now translates to peace of mind later for your family.

Final word and next steps

Minimizing probate litigation means smoother sailing for your loved ones during a difficult, grief-stricken time. By addressing these potential issues, you can create an estate plan that truly safeguards your legacy and brings your family peace of mind.

Do not forget to consult Ohio probate laws for additional insight into creating an estate plan tailored to your local legal landscape. Legal guidance can introduce you to more ways of ensuring a smooth and stress-free inheritance experience for your family.

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On Behalf of Zigray Law Office, LLC | Feb 1, 2024 | Will Contests

No one wants their loved ones to become involved in a court battle over their estate after they’re gone. That’s one reason people create estate plans. They want their wishes to be clear and to be carried out as they intend. Inheritances left to non-family caregivers are still a common reason for probate litigation. 

With more people choosing to remain in their own home as they get older and with families often spread out over the country and the world, professional in-home caregivers often become the people closest to seniors in their final years. 

Preventing accusations of undue influence

You have every right to include your caregiver in your will in whatever way you choose. However, if you’re leaving them considerable assets or modifying your current will or living trust to add them, it’s crucial to make sure that your close family members (like adult children) are aware that you’re doing this and understand that you’re choosing to do so. Otherwise, your caregiver might have to deal with a court challenge in which they’re accused of exerting “undue influence” on you.

Unfortunately, that’s a common assumption because it happens far too often when the person being cared for is cognitively impaired, very ill or heavily medicated. In fact, Ohio courts have determined that non-relative caregivers are among those who have a “rebuttable presumption” of undue influence. That means if challenged, they have to provide evidence that they didn’t exert undue influence over someone.

Two things you can do

As noted, it’s important to discuss your wishes with your loved ones. You don’t need their permission, but they should know that this is your choice and you fully understand what you’re doing. You can explain how much your caregiver has done for you over the years (and how they’ve saved them from having to rearrange their lives to care for you). 

You may also choose to gift your caregiver some of your assets while you’re still around. Just be careful not to trigger gift taxes. It’s best to codify these gifts in your estate plan or elsewhere so your caregiver isn’t accused of stealing. Also, don’t “promise” them they can have certain things after you’re gone unless they’re listed in your will.

If you have experienced estate planning guidance, you can better ensure that you’re taking every reasonable step to prevent legal battles among loved ones after you’re gone.

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On Behalf of Zigray Law Office, LLC | Jan 18, 2024 | Trust Contests

Someone who has been named the trustee of a trust has the same kind of fiduciary responsibilities as the executor of an estate has. They have a duty to act in the best interests of the beneficiary(ies) of the trust and to abide by the law in doing so.

The specific duties of a trustee depend on what type of trust they’re managing and what the goals and purpose of the trust are, as detailed by the trust’s creator or “settlor.” Sometimes, for example, a trust is set up with the intention that the assets in it will provide a source of regular income to the beneficiary. That may require ensuring that the assets are invested and managed wisely so that they grow in value or at least remain stable.

In many cases, parents place their adult children’s inheritances in “conditional” trusts rather than give them assets directly. The trustee then has the crucial role of distributing the assets as the trust creator outlined – for example, a certain amount each year or only for specific purposes (like paying for college or a new home).

The trustee-beneficiary relationship can be an inherently tense one. It’s easy to resent someone who has control over money that’s intended for you – even if they’re only following the directions they were provided. That doesn’t mean you have the right to remove them.

The grounds for removing a trustee under Ohio law

A beneficiary or a co-trustee (if there is one) are the only ones who can ask a probate court to remove a trustee after a trust settlor has passed away. This effort is only legally justified under three circumstances:

• The trustee has “committed a serious breach of trust.”
• The trustee has shown an “unfitness, unwillingness, or persistent failure…to administer the trust effectively.”
• The trustee is refusing to cooperate with other trustees to the point where it “substantially impairs the administration of the trust.”

The court has a responsibility (as does any trustee) to do what’s in a beneficiary’s best interests. If the trustee isn’t doing that, a court can remove them and appoint someone else (or ask the alternate to take over, if one was named).

Whether you believe there are grounds for removing a trustee or you are the one whose removal is being sought, it’s important to seek legal guidance to protect and assert your rights.

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On Behalf of Zigray Law Office, LLC | Jan 17, 2024 | Will Contests

Usually, families feel grateful when they discover that someone who died has left a will behind. A will or other estate planning documents provide clear instructions about who should inherit resources from an estate and other important details about someone’s legacy.

Unfortunately, not all families feel confident that a will or estate plan actually includes terms that the testator desired. Sometimes, there are concerns that an outside party, likely someone who is a beneficiary of the estate, may have inappropriately influenced the terms included in the document. Undue influence is the legal term for when someone other than the testator creating a will or trust sets the terms for their estate.

What can families do if they suspect that an outside party inappropriately influenced an estate plan?

They can contest the will

Undue influence occurs when someone other than the testator uses their relationship with the testator to obtain a larger inheritance. Other times, they might seek out other better official estate planning terms for personal gain.

For a situation to constitute actionable undue influence, there needs to be reason to believe that the testator was vulnerable to some degree and that someone, such as a spouse, child or caregiver, tried to manipulate or coerce them into changing their paperwork. Finally, that person needs to directly benefit by receiving property from the estate. If the situation meets all of those standards, then the other surviving family members or presumptive beneficiaries of the estate could take legal action. They can contest or challenge the will in probate court.

A judge can review their evidence along with the testamentary documents to determine if there are any concerning signs of misconduct. If the judge agrees that an outside party likely influenced the testator’s choices, they might choose to uphold an older version of someone’s estate plan. They could also set aside a will if it is the only document on record and distribute assets from the estate as though someone died without an estate plan.

Estate litigation related to challenging someone’s testamentary documents can take months to resolve. However, especially when the terms set in the documents are not what someone told their family they wanted, it may be proper to push to uphold their actual last wishes instead of terms influenced by someone else. Connecting someone’s position of authority with changes to an estate plan might help families realize that they need to take action in probate court.

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