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

Prince didn’t have one. Neither did Howard Hughes, Abraham Lincoln, or Michael Jackson. These are just a few of the famous people who died without a will. And unfortunately, it’s not all that uncommon an occurrence, regardless of a person’s celebrity status.

According to a 2015 study, 64% of all Americans die without a will. The number is even higher, a whopping 70%, for Americans between the ages of 45 and 54. And the percentage of 55-64 year old individuals who die without a will is also surprisingly high at 54%.

Without a will, the laws of the state where you live determine who receives your assets and who controls your estate after your death. The absence of a will more often than not results in the need to litigate the estate in probate court, thus greatly increasing the chances that the estate will not be distributed as the decedent had envisioned.

Even with a modest estate, it’s never a legally sound idea to die intestate. So why is it that such a high percentage of individuals fail to create a will before they die? Some of the reasons may surprise you.

• A mistrust of professionals
• The belief that it’s too costly to draft a will
• Contrary to religious beliefs
• Procrastination
• Denial of mortality
• The desire to have heirs fight
• A belief that there isn’t much to distribute

No matter the reason, failing to sign important legal documents like a will may leave one’s heirs and legacy embroiled in an expensive and drawn-out legal battle. Rather than leaving your estate in the hands of strangers or putting your loved ones through a messy court case, you can always consult an experienced attorney to create an enforceable, effective will.

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | May 11, 2016 | Probate Litigation

Many surprises can come up when a person passes away without a will. This can be particularly true when there are also significant assets involved. While some of these surprises may be considered good if they work in your favor, there are surprises that only make things more complicated.

One case that highlights this point is the case involving iconic entertainer Prince’s estate. Reports indicate that no will has been located, which means it is up to the administrators of his estate to gather information on Prince’s assets, finances and heirs. The fact that he may not have had a will was a surprise to begin with; but now more people are coming into the fold by claiming they are heirs to his estate.

So far, at least two people have claimed to be heirs including a man claiming to own Prince’s intellectual property and a woman whose relationship to Prince has yet to be reported.

As noted in this USA Today article, there will likely be more people coming forward to try and stake a claim in the singer’s estate. It is possible that people claiming to be former business associates, religious partners, children Prince never knew he had and other family members could try to argue they are potential beneficiaries.

Each time this happens, the administrator of the estate — in this case a bank — needs to evaluate the legitimacy of the claim and decide whether or not to try and have the courts officially dismiss the claim. It is a complicated, frustrating and time-consuming aspect of figuring out who is and is not an eligible heir.

Whether claims turn out to be valid or not, the fact is the probate process can be drawn out and become far more complex when there are multiple people coming out of the woodwork claiming to be beneficiaries.

It should also be mentioned that unexpected beneficiaries could significantly affect efforts to settle the estate and create some emotional turmoil that did not exist before.

Even though most people will not be dealing with an estate as enormous and sophisticated as Prince’s, there could still be assets and money on the line when a person passes away without a will. Considering how intricate and thorny these situations can be, it will be crucial for confirmed and potential beneficiaries alike to have legal representation in order to avoid and/or deal with surprises that come up along the way.

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | Apr 26, 2016 | Probate Litigation

Pets are an important part of families across Toledo, whether they are dogs, cats, birds or other animal companions. Every day, we care for them, provide for them and interact with them and it can be nearly impossible to imagine life without a beloved pet.

Considering how important pets are to us, it can be crucial that we not forget about them when it comes to things like estate plans. If you have a pet, you will likely be thinking about what will happen to it when you pass you away and who will care for it.

There are two options pet owners will want to consider, as noted by this AARP article.

You can leave instructions for who should care for your pets in your will. However, you should first make sure this person is willing and capable of taking on this responsibility. Rather than saddle that person with an unwanted responsibility or put them in a position to make a very difficult decision, you can talk to them and make sure this is an arrangement that works for all parties involved.

Another option is to set up a trust naming a caregiver and/or a trustee to take over care. With a trust, you can also set terms for gifts and financial support to cover pet-related expenses to help the person who is caring for the pet. It should also be noted that unlike a will, a trust can go into effect right away, leaving little or not time for the pet to be left without care.

Failure to express your wishes for your pet in a will or trust can result in some unwanted consequences. Rather than assume someone will take care of your pet or put your loved ones in a very uncomfortable situation, you can address pet care and ownership in your estate plan. Working with an attorney and discussing the matter with those involved by your decision can help you protect your pet and ensure it will be protected and cared for when you are gone.

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | Apr 14, 2016 | Probate Litigation

If you get very sick and do not have the physical or emotional capability to manage your own finances, do you know who will take over these responsibilities? Unless you grant power of attorney to someone, this decision will typically be left up to a judge who is probably a complete stranger.

In order to protect yourself and your financial interests, you can give someone else permission to manage these affairs on your behalf by completing a durable power of attorney. So what exactly can someone with power of attorney do?

The person to whom you grant power of attorney will be legally allowed to:

• Pay bills like mortgages, utilities, credit cards and medical expenses
• Access your bank accounts
• Invest your money
• Sell real estate and other assets you own
• Manage and submit your tax returns

If power of attorney is durable, it means that the agent will continue to have these permissions even if you become incapacitated.

Considering the access and permissions a person with power of attorney will have, it is important that this person is someone you know and trust, and can handle the financial responsibilities of the role.

It is also crucial to understand that power of attorney is only in effect until the grantor of that power passes away. Failure to recognize this could lead to some serious complications.

As discussed in this article in The Consumerist, someone with power of attorney can manage a person’s affairs quite easily while he or she is still alive only to face serious challenges doing the same things after the person passes away. Further, if you have power of attorney and continue to make decisions on behalf of the deceased, you could find yourself in serious trouble and cause considerable damage to a person’s estate.

Assigning durable power of attorney can be an incredibly important task. It should be done after careful consideration and with an understanding of what that legal obligation allows a person to do. Before you make any decisions regarding power of attorney, it can be wise to discuss your legal options with an estate planning lawyer.

Posted in Uncategorized | No Comments »

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

Losing a loved one can be a devastating experience for any person, and coping with that loss can be physically, emotionally and even financially overwhelming. You may have a lot of unanswered questions and troubling issues that are left unresolved. 

During such a difficult time, your legal options may not necessarily be your top priority. However, you might find that resolving the disputes, questions and concerns that arise in the aftermath of a person’s death can only be done through the legal system, and litigation may be unavoidable. 

For example, if the loved one who passed away did not leave an executable will, you can wind up battling siblings, parents, spouses and other family members over what should be done with the decedent’s property and assets. Who will get the house? What about a much-loved piece of jewelry that has been in the family for years? How will you decide who will take care of a pet that has been left behind?

Even if there is a will in place, it could have gaps or questionable terms that demand further clarification. Did the decedent intend to leave someone out of a will? When was the document last updated? Could it have been created or changed as a result of coercion or at a time when the person was unfit to make such decisions?

These can all be grounds for contesting a will, so it can be wise to be prepared for this process.

You may be surprised at your reaction or the reactions of those around you when it comes to the administration of a person’s estate, as it may become more contentious or emotional than you expected. This is not uncommon, but it should also not be taken lightly. Having legal counsel by your side to guide you through this complex process can help you get the answers you need to begin moving forward.

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | Mar 17, 2016 | Probate Litigation

Deciding who you want to take care of you and your personal affairs in the event that you can no longer do so can be very difficult. Many people feel uncomfortable thinking about such topics and also find it a challenge to bring them up with loved ones. Because of this, people put off these decisions.

This can have some unfortunate consequences when and if the time comes for you to need help, as the courts will need to appoint a guardian. For instance, if you become very ill or otherwise unable to care for yourself and make financial and/or health care decisions, a guardian will have to make these decisions for you. There are some very important factors to consider because a guardian is appointed.

A guardian will be expected to step in and help with only those decisions that a ward cannot make alone. The guardian should therefore be an adult who is as clear on the limitations of this role as he or she is on the responsibilities. A guardian should also be considered an honest person without a history of activities like bribery, theft or financial mismanagement.

Existing relationships with the ward with also be examined. Considering all the decision-making expectations a guardian will have, he or she will typically be a family member or someone else who knows the ward and, ideally, has a familiarity with his or her wishes.

The courts take a number of factors into consideration when appointing a guardian, including those mentioned above. However, there are many instances when the court appoints someone that the ward or others close to the ward may not agree with.

There are legal avenues to pursue in order to challenge and change guardianship, but it can be easiest to make sure this determination is made before it is actually necessary. As part of a comprehensive estate plan, you can name a durable power of attorney and specify your financial and health care wishes so that your wishes are documented and can be referred to by the courts when determination guardianship.

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | Mar 3, 2016 | Probate Litigation

End-of-life planning can be a very difficult task. Not only can it be uncomfortable to discuss topics like estate plans and wills, but it can also be a very complicated process to make decisions on what you want to happen to your assets after you are gone.

However, as difficult as it is to create your estate plan, it can be one of the most important things you do for yourself and your loved ones. In order to do this, it can be wise to take the following five steps as you prepare your estate planning documents.

1. Set up a trust: Leaving assets in a trust can help avoid probate, which is the process of proving a will and its legitimacy in court.
2. Have witnesses present: As noted in this article, many people claim that a person was mentally unfit to draw up a will or make changes to one, which is why they often challenge it in court. However, you can minimize this supposition of mental incapacity by having witnesses present when you sign the will. Recording the process can also allay the concerns of people who were not present at that time.
3. Explain clauses that might be confusing or unexpected: The details of your estate plan are completely up to you. However, they can be challenged if they are unclear or go against what others expected. Rather than leave interpretation of your wishes up to others, you can explain any areas of your will that may appear to be surprising, inconsistent or unfair.
4. Discuss the plan with your loved ones: To further explain these wishes, discuss them with the people who will be affected by them. This allows people to ask questions and make clarifications with you instead of after you are gone.
5. Make sure the documents are legally enforceable: If your estate plan is not enforceable, every decision you believe you have made could actually be left in the hands of strangers.

These steps can help you make the process of administering your estate a little easier and less contentious. While it may not be possible to completely avoid probate or guarantee a conflict-free process, being clear and mindful of your decisions and discussing them with an attorney can go a long way in protecting yourself and your loved ones.

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | Feb 22, 2016 | Probate Litigation

Does an estate lawyer’s services end when his or her client has drawn up a comprehensive estate plan? Given the risk of estate disputes or even lawsuits against executors, that answer is often no.

An executor named in a will is an individual entrusted with a fiduciary duty. Readers likely understand the task of distributing bequests to named beneficiaries in accordance with the will. However, an executor must attend to a whole host of other issues, some of which might land him or her into hot legal waters.

For example, an executor must also pay bills of the estate. It may seem like common sense to pay credit card or other bills when invoices arrive in the mail. However, as a law firm that focuses on probate and estate administration, we try to educate our clients about classes of estate debt. Not all debts are equal. A federal tax liability, for example, often takes priority over other unsecured debt. If an executor were to deplete estate reserves by paying off other lower-class creditor claims before the taxes, he or she could be facing legal liability from the IRS.

Yet tax authorities are not the only ones to whom an executor may be responsible. He or she also has a fiduciary duty to the beneficiaries of the estate. That duty includes conserving estate assets, but not necessarily increasing them. For example, an executor may be tempted to invest cash assets in the hopes of obtaining a higher return. Yet if the market plunges, he or she could be deemed to have breached that fiduciary duty by mishandling estate assets. 

Source: Wall Street Journal, “The Biggest Mistake Executors Make,” Veronica Dagher, Jan. 31, 2016

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | Feb 10, 2016 | Probate Litigation

A few years ago, a Florida millionaire disappeared. He had been depressed, news reports said, and he had been mired in litigation against his uncle and former business partner. There were rumors of marital trouble. Still, it came as a surprise to his family when he went missing on June 19, 2012.

Guma Aguiar climbed into his boat that evening and sped out to sea. Witnesses said he was going fast. They also said the weather was closing in, and the sea was choppy. Six hours later, his boat was washed up on a beach a few miles away — keys in the ignition, navigation lights on but engines not on and Aguiar nowhere to be found. The search was called off after two days.

Within days of his disappearance, his wife and his mother squared off over control of the estate. The court finally appointed conservators.

In both Florida and Ohio, if a person disappears as Aguiar did, he is not presumed dead until the fifth anniversary of his disappearance. Of course, if evidence turns up that he died before the five years elapsed, that date would be recorded as his official date of death.

The law is not without compassion. One or more family members are allowed to petition the court to have the missing person declared dead during that five-year period. They must present sufficient evidence to support the petition — that is, they must prove to the court that their belief that their loved one is, in fact, deceased is based on more than a hunch.

This is what Aguiar’s wife and mother did about a year ago. They set aside their differences and asked the court to declare Aguiar dead. When the court consented, the two women reportedly resumed their battle for control of the man’s fortune.

Under the circumstances, their efforts to move on with their lives — and the lives of Aguiar’s four young children — are understandable. Without the death certificate, Aguiar’s will (assuming he has one) is just a piece of paper. Without the death certificate, any life insurance benefits are off the table, and someone has to pay the premiums. His estate and his families lives are in limbo.

In the months following his disappearance, much of the litigation he was involved in was settled. His wife sold off some big-ticket items and put their mansion on the market. The litigation was expensive, though, and the conservators’ fees must have been adding up, too.

The Florida court’s decision resolves many issues, but it does not answer every question about Aguiar’s assets. He owned several properties in Israel, and the Israeli court is under no obligation to accept the Florida’ court’s declaration. Those properties are at the center of a dispute among his survivors, including his sisters.

Sources:

Huffington Post, “Guma Aguiar: Fate of Missing Fort Lauderdale Millionaire Still A Mystery One Year Later,” Linda Trischitta, Aug. 18, 2013

Sun-Sentinel, “Broward judge declares missing millionaire dead,” Linda Trischitta, Jan. 29, 201

Posted in Uncategorized | No Comments »

On Behalf of Zigray Law Office, LLC | Jan 25, 2016 | Probate Litigation

One of the most flexible tools in estate planning is a trust. A trust can protect assets from creditors and estate taxes. A trust can protect the decedent’s privacy. A trust can make sure someone who cannot take care of himself has the means necessary to maintain a decent standard of living. A trust may not be able to make you a grilled cheese, but it can make sure someone makes it for you.

This flexibility in purpose makes it all the more important that a trust be drafted well, that it follow accepted practices and specific Ohio laws. For example, it may look as if all the work happens up front for the grantor (the person who establishes the trust). Assets are gathered, a trustee is identified, beneficiaries are named and everything is written down and signed. It is easy to assume that, once the trust is in place, the grantor can just sit back and watch.

That is only true of an irrevocable trust, though. Once that trust is executed, it cannot be changed. A revocable trust, however, is a different thing altogether.

A trust is technically a document that authorizes a person or entity (the trustee) to hold onto and to manage a grantor’s assets for the benefit of another (the beneficiary). The grantor may be the trustee, and the grantor may be the beneficiary. The key to the trust is that the assets are held and distributed according to the terms of the trust.

Ohio law dictates that someone who is able to make a will is also able to establish a trust. That means the grantor must be at least 18 years old, of sound mind and memory and not the victim of undue influence. If all of these conditions are met, the grantor is said to have the capacity to establish the trust.

An irrevocable trust cannot be altered. Once it is executed, the grantor cannot change the terms of the trust or withdraw funds at will. The trustee is bound by the trust agreement alone. Capacity, then, is only important at the beginning of the process.

A revocable trust, however, is not permanent. The grantor is allowed to amend the terms, even to dissolve a revocable trust — but only if the grantor has capacity at the time of the amendment. Because the grantor has the sole power to amend the trust, upon his death the trust becomes irrevocable.

Why choose revocable over irrevocable? That’s a decision the grantor should make with his estate planning attorney.

Source: Ohio Elder Law, Chapter 11: Trusts, Margaret H. Kreiner and Bradford S. Carlton, September 2014 via Westlaw

Posted in Uncategorized | No Comments »