On Behalf of Zigray Law Office, LLC | Dec 29, 2016 | Breach Of Fiduciary Duty

In a perfect world, administering an estate should be a seamless process that runs efficiently from start to finish. Unfortunately, many people who are appointed as the executor of an estate have no experience with the process. Mistakes can arise during the probate process – some with little consequence, others that lead to profound probate disputes.

Executors have specific tasks and duties to attend to during the administration of an estate. Gathering assets, obtaining fair values, paying debts of the estate and distributing assets are among the most well-known duties. At any stage of the probate process, problems or mistakes can adversely impact the value of the estate or the rights of beneficiaries or heirs.

No list of problems could cover every potential issue, but some of the more common mistakes recognized by MarketWatch are discussed in this post.

Mishandling Estate Assets

The scope of an executor’s authority is not always obvious to someone who is unfamiliar with the process. When real estate is included in an estate, many twists and turns can create legal problems for an executor. For instance, disputes over how to handle the real estate can create significant disputes. If a family member lives in the home, and another heir has inheritance rights to the property, the probate court may need to resolve the issue.

It may be clear that the property should be sold and the proceeds distributed among the heirs. However, if a real estate agent recommends improvements or repairs to market the property, disputes can arise over the executor’s authority to use estate assets to accomplish the repairs or upgrades. Similarly, delaying a sale for too long a period can expose the executor to the risk of damage to the home.

Misusing Estate Assets For Personal Gain

Self-dealing or improperly commingling estate assets with personal assets can not only violate the rights of heirs to the estate, but these issues can create animosity and resentment among family members. Whether an executor has intentionally misused assets or commingled an asset with personal assets, the misconduct or oversight may be the basis for a breach of fiduciary duty claim.

Using Estate Assets For New Investments

In general, an executor does not have a duty to increase the value of assets of the estate. It may be tempting, however, for an executor to invest assets during the probate process. The risk of loss resulting from new investments may lead to disputes.

Paying Bills Or Making Select Distributions Too Early

Paying the debts of the estate in a timely manner often causes confusing for executors. As bills arrive during the probate process, the temptation to take care of the debt immediately can unfairly deplete assets for other classes that may be entitled to payment before the creditor. There are a variety of priorities for how debts should be paid and assets distributed, and paying a bill before other classes that have a higher priority can result in a claim for breach of duty.

If you have questions about how an executor is handing an estate, your inheritance rights may be at stake. It is important for you to speak with a probate litigation attorney promptly if an executor is unfairly depleting an estate to your detriment.

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On Behalf of Zigray Law Office, LLC | Jan 6, 2016 | Probate Litigation

This is a continuation of our Dec. 22, 2015, post.

One of the wonderful things about probate law is that it touches so many other areas of the law. In addition to the law of wills and trusts, a good probate lawyer knows family law, tax law, property law, personal injury law — all sorts of issues come up in estate planning and administration, and it is the probate lawyer’s job to handle those issues effectively and efficiently.

Our Most Interesting Probate Story involves a law that may come up less frequently but addresses an important issue: the Native American Graves Protection and Reparation Act of 1990. Jim Thorpe was part-Indian, and two of his sons argue that he wanted to be laid to rest with the Sac and Fox Nation in Oklahoma. In their fight against the town of Thorpe, Pennsylvania, they asserted that the monument that contains Thorpe’s remains is governed by the act.

Before NAGPRA, an American Indian burial ground on federal land was considered an “archeological resource.” Museums around the country collected remains and funerary items from these sites without the permission of the tribe. The law sought to end what many refer to as the plunder of the burial grounds by adding protections to the sites and any cultural objects found at sites. More importantly for the Thorpe case, the law also gave Native Americans of lineal descent or cultural affiliation control over the objects that had already been removed from the burial sites.

The Thorpe brothers argued that the memorial in Thorpe qualified as a museum under NAGPRA. The federal district court agreed with them, but the Third U.S. Circuit Court of Appeals found the interpretation of the term to be absurd and overturned the lower court’s decision.

The appellate court also pointed out that spousal rights have more legal weight than tribal rights. Thorpe may have told his sons he wanted to be buried with the Sac and Fox, but his widow had every right to decide otherwise. Had his wishes been in writing, it would have been a different story — and a little less interesting.

The U.S. Supreme Court denied review of the case, so the appellate decision stands, and Jim Thorpe’s remains will stay where they are … for the time being.

Source: USA Today, “Fight for Jim Thorpe’s remains continues 62 years later,” Erik Brady, Aug. 8, 2015

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On Behalf of Zigray Law Office, LLC | Nov 23, 2016 | Probate Litigation

The loss of a parent or other close relative is always painful. Unfortunately, for many people, inheritance disputes can compound the feelings of stress and anxiety during a time of grief. When it comes time to review the contents of a will, some individuals are surprised to find that the will has been recently altered, or a codicil has been executed that creates confusion over the meaning of the original estate plan.

It can be difficult to know where to turn when the words in a will do not meet with your expectations. Changes in our society, such as the tremendous increase in blended families, have led to an increase in family disputes in recent decades. As life expectancies are growing longer, there is a growing chance that issues such as the capacity to execute a will or the existence of undue adversely influence can impact a person’s inheritance rights.

While sibling or step-sibling rivalries may appear to be the focus of many probate disputes, it is vital for an expected beneficiary, heir-at-law or trustee who feels that something is amiss with estate documents to work with a probate attorney who knows who to analyze the documents and the circumstances that surrounded the creation of a will or trust.

Common Reasons To Challenge A Will

• Capacity of the testator: To be able to execute a valid will, the law requires that the person has the mental capacity to understand the consequences of creating or altering a will. Adults are generally presumed to have the capacity to create a last will and testament. Testamentary capacity challenges typically require a challenger to show evidence of dementia, senility, Alzheimer’s or some other mental impairment to prove that the testator was not of sound mind to execute the will.
• Undue influence: Not all wills divide property equally among heirs and beneficiaries. However, as a person ages, they may become more susceptible to manipulation. A family member or other person who is close to an elderly person may try to use pressure to have the testator alter a will. Proving undue influence typically requires more than just a showing of pressure, but often is based upon evidence that a beneficiary used coercion to obtain a larger share of the estate.
• Forgery or fraud: Evidence that the testator was tricked into signing documents or never signed them at all may be valid challenges in a will contest.

A potentially invalid will raises difficult concerns for a person mourning the loss of a loved one. On the surface, a will contest may seem all about the money. In reality, an invalid will does not truly reflect the desires of a loved one. If you believe that something is wrong with a will, you may be able to contest the will in court.

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On Behalf of Zigray Law Office, LLC | Nov 7, 2016 | Probate Litigation

The time immediately following the loss of a loved one can be very difficult. Oftentimes the last thing anyone wants to do after such a loss is to care for legal concerns while also attempting to grieve and process. Because of this, some may want to relocate some of their assets into certain types of assets in order to reduce the amount of time their loved ones will have to spend in probate court following their death.

In the state of Ohio, many county courts have their own rules regarding probate litigations, but there are usually a handful of assets that are not required to go through probate, regardless of individual court rules. These include,

Revocable Trusts

There are many types of trusts, but they are all a legal agreement between a trustmaker, a trustee, and the beneficiary/beneficiaries. With revocable trusts, the trustee is responsible for managing the trust and the assets therein and the beneficiaries are those who receive the benefits of the trust. A revocable trust (as opposed to an irrevocable trust, which is a separate thing) can be altered or dissolved at any time whereas an irrevocable trust cannot be altered and practically lasts forever. If used with the intention of avoiding probate, revocable trusts are often used in correlation with survivorship life insurance.

Right of Survivorship or Tenancy By the Entirety

These are normally used in regard to Real Estate. Both function in almost the exact same fashion as joint tenancy. The difference, however, is that Tenancy By the Entirety is only available to married couples. If a married couple does hold their property in TBE, then upon the death of one tenant, all property held by both holders passes into the possession of the survivor.

Payable/Transfer on Death accounts

Some bank accounts will have clauses in them that specify that the account is payable on death or transferable on death. As long as the account holder is alive, the person listed as the inheritor of the account has no access to it. This allows the account holder to use and manage the resources within the account or to name any other beneficiaries up until their death.

Probate litigation can be beneficial for many reasons, but if you decide that the benefits of avoiding it outweigh the potential advantages, the aforementioned methods will allow you to do so. You can pursue these options on your own, but it may be more advantageous to consult a legal profession so as to ensure all actions are taken in accordance with the law.

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On Behalf of Zigray Law Office, LLC | Nov 3, 2016 | Farm Inheritance Disputes

Ohio farmers sometimes face unique issues when it comes to asset transfer. It’s not uncommon for a farmer to want to leave real property to a specific family member on death or even transfer an ownership interest during life. The legal options available allow for several variations of transfer timing and structure. Corporations and limited liability companies offer tremendous flexibility and may be beneficial as estate planning tools or to facilitate asset transfer.

When it comes to transferring ownership of farm property, a distinction must be made based on whether the property in question consists of operating assets or land assets. Generally speaking, corporations should be established only for a business purpose; they are not ideal if asset transfer is the only goal. If the assets are operating assets, a corporation may be the best option with regard to business protection and tax savings.

Limited liability companies carry some of the advantages of corporations and they allow tax benefits in some circumstances. In most cases, LLCs are the better choice for transferring real property. They allow for the transfer of LLC units rather than corporate shares. They also allow for the transfer of an ownership interest by gift during life, by bequest after death or via sale in exchange for contract or cash.

A well-designed plan for the transfer of family assets makes farm inheritance disputes less likely. Individuals who have questions about estate planning, probate, asset transfer or other issues may want to consult an attorney. An attorney with experience in estate planning may be able to tailor a plan to meet the client’s needs and goals. An attorney may be able to draft a valid will or establish an LLC for use as a transfer instrument.

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On Behalf of Zigray Law Office, LLC | Oct 27, 2016 | Probate Litigation

Medicine is complicated art and science. So many things can go wrong with the individual systems that make up our human coil that areas of specialty have developed. Even general practitioners are specialists in their own way. They’re usually focused on preventing health issues. Once someone in Ohio gets sick or hurt, though, they tend to need to go up the ladder for targeted care.

The same is true of the law, even within a particular area. Take estate law for example. Within this segment, there are attorneys who focus on the planning required to prevent issues from cropping up for clients. Other attorneys may get granular in the area of probate litigation, contesting or defending wills. Regardless of which side of the fence one is on in a contest of a will, certain procedures will be followed.

So what are the steps involved in defense of a will? First, it must be noted that state laws vary. However, many experts would agree that the ball starts rolling when the executor of an estate receives a Verified Complaint about the will after it’s admission to probate.

Presuming the complaint is filed correctly and within the proper timeframe required by law, the next step is to speak to the attorney who drafted the will. Because of the role played in that process, he or she is a key witness and is not in a position to handle the defense, at least not alone.

The next step is the filing of a formal response to the complaint. Then, lining up of relevant other witnesses and questioning of them begins. These might include treating doctors or others with information related to the execution of the will. Next comes providing an accounting of estate assets.

Most of the time, contests are based on claims that the decedent faced undue pressure when drafting the will or was mentally incompetent. Because of that, it’s important in defense to develop evidence that supports a narrative that the decedent was of sound mind and body when executing the will.

The more complicated the estate, the more likely it is that other issues will be sources of dispute and the more important it is to have confidence in the attorney at your side.

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On Behalf of Zigray Law Office, LLC | Oct 20, 2016 | Breach Of Fiduciary Duty

The executor of an estate has many responsibilities with regard to managing the assets of a decedent. Ohio residents should be careful when they are choosing who to place in this position. In a case that was brought before the Supreme Court, the plaintiff alleged that the defendants, the co-executors of an estate, failed in their fiduciary duty when they overvalued an asset by $3 million. The plaintiff, who was the sole beneficiary of the estate, argued the miscalculated evaluation resulted in excessive federal estate taxes.

The defendants offered many special defenses. One of the defenses was that they were permitted to depend on a third party in assessing the value of the assets of the estate. When the defendants applied for a summary judgment in the case, it was rejected as premature. Right before the trial was to begin and after several depositions and discovery hearings, the defendants moved again for summary judgment while the plaintiff applied for a partial summary judgment.

Based on the assertion that there was inadequate evidence to present the case to a jury, the trial court granted a summary judgment in favor of the defendants. There was no expert testimony offered by the plaintiff that could attest to the proper protocol for when it was necessary to have the value of substantial estate assets assessed. It was specially noted that the appraisal of the corporate assets in question was complex and required the reliance on an expert. The trial court asserted that considering the factors surrounding the case, the blind negligence that occurred was not a case of a breach of the defendants’ fiduciary duties.

Disagreements regarding how the estate of a decedent is administered can result in a dispute with beneficiaries. These situations can become particularly challenging, and an executor may want to have the assistance of a probate attorney throughout the process.

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On Behalf of Zigray Law Office, LLC | Oct 6, 2016 | Probate Litigation

When it comes to contesting wills, The , has been assisting Ohio residents for nearly 20 years. As probate attorneys, we work hard to find answers for those who believe that the will of a family member is not valid and does not express their loved one’s true wishes.

If you have lost a loved one and are doubtful over the validity of their will, we’ll do our best to find out if certain circumstances caused the document to be altered. Some of those circumstances include changes made to the will by an attorney who was not the decedent’s appointed lawyer, last-minute alterations or changes done while the testator was suffering from a disease like Alzheimer’s or dementia that could have affected judgment. Sometimes, people may contest the validity of a will if it named one person, such as a second spouse or a child, as the sole beneficiary of the testator’s entire estate.

Contesting a will can also involve disputes over a trust and bring to light suspicious changes made to a person’s bank account survivorship rights, life insurance or investment account beneficiary designations. Sometimes, an executor or trustee may have concealed the decedent’s assets or their transfer was denied for an unknown reason. In other cases, the family may discover that a person tricked their loved one into giving away their property as a gift. We could also assist you with determining if an individual who was appointed power of attorney is guilty of a breach of fiduciary duty or if the loved one requires the protection of a guardianship.

If you think your loved one’s will is not valid, we’ll strive to do everything possible to help you. For more information about our firm, visit our website on contesting a will.

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On Behalf of Zigray Law Office, LLC | Sep 30, 2016 | Probate Litigation

The title of executor sounds impressive. It’s more than an honorary moniker, however. If you’ve been asked to be the executor of a loved one’s Ohio estate, or find yourself surprised at having been named as such, you might want to think twice about saying yes.

At the same time, if you are an heir who believes that you have been denied your rightful inheritance or that your loved one is at risk because someone granted power of attorney is not up to the job, you may have a right to raise questions. To get answers and determine what action might be appropriate, consulting an attorney is always recommended.

One factor that it may be important for everyone to understand is that the role of executor can be challenging. Before launching any kind of action, consider the following.

• It can be difficult to be executor. Most of us are busy as it is. When someone takes on the responsibility of executor, they may face a significant administrative burden that could last years. They may only find out, too late, that they don’t have the time or skill to do the job right.
• Who might you be dealing with? Typically, there is only one executor. More thoughtful planners might name two. That provides for some checks and balances. It could also create some tension that could have long-term effects if stoked.
• Is it worth the cost? The right of an heir to raise a claim exists, but it might be worth asking whether pursuing the issue is worth the expense. In addition to the financial component there could require the spending of emotional capital that could have long-lasting effects.

Regardless of what side of the fence you may be on in such a situation, it’s important to understand your rights and your potential responsibilities. Working with a skilled lawyer can help achieve optimal outcomes.

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On Behalf of Zigray Law Office, LLC | Sep 30, 2016 | Probate Litigation

Many commentators have focused on the divorce rate in the United States in debating parent-child relationships and similar issues in the public forum. However, divorce is not always the end of the story. Many individuals remarry after a divorce. Similarly, widows and widowers often find new partners, creating a significant number of blended families in Ohio and throughout the country.

Blended Families Are Highly Common

In fact, half of our country’s 60 million children under the age of 13 live with a stepparent or partner of one biological parent, according to The Step Family Foundation. Unfortunately, even for individuals who have created an estate plan, disputes among family members, or between a family member and the personal representative, can often erupt after the person passes away — and in a blended family, the reasons for dispute may be more plentiful.

Well-known author Tom Clancy, who wrote such great stories such as The Hunt for Red October and Red Storm Rising, took great strides to write an estate plan (although he likely did not write the plan himself). His plan included three trusts. One trust was intended to benefit of his second spouse. A second trust was created to provide for his second wife and the couple’s minor child. A third was intended to benefit the author’s children from his first marriage.

The author created documents to explain that the second and third trusts should split the estate taxes so that they remained equal in net value. With everything covered, all seemed well and good. However, at some point the author created a codicil (a document to modify an existing part will) to allow the second trust qualify for the marital deduction. Unfortunately, the new document apparently did not also address the tax issue. That became the basis for dispute during administration of the author’s estate after he passed away.

Estate Tax Bill Important In Creating The Dispute

Estate taxes amounted to nearly $16 million dollars without the marital exemption and the personal representative sought to split the bill equally between the second and third trust as originally planned. However, Alexandra, the author’s second wife thought that idea would defeat the purpose of the codicil. Tax payments due not qualify for the exemption, diluting the benefit of the codicil. She argued that the third trust should cover the entirety of the outstanding tax debt, which amounted to $11.8 million when factoring in the exemption created by the codicil.

The courts looked at the original will and the codicil together and determined that Mr. Clancy would have wanted the entire plan to pay lower estate taxes, leaving the author’s children from the previous marriage with all of the tax burden -and reducing the relative value of their share of the estate (the second and third trusts were intended to have equal value and an equal tax burden prior to the codicil).

Wills and trusts contests can have complex issues. When blended families are involved, there may often be disputes between step-siblings or step-children and the step-parents. Working with a focused probate litigation attorney can make a significant difference in the outcome of a dispute.

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