On Behalf of Zigray Law Office, LLC | Nov 27, 2023 | blog, Trust Contests

You and fellow family members may anticipate receiving assets from a trust created by an elder family member. As such, you want the trustee to manage the trust appropriately for your benefit. This does not always happen though, or there may be other defects with the trust.

You probably know that people can contest a will in court, but are not sure about suing for control of a trust. It is possible to contest a trust but to do so, you should have legal standing.

Beneficiaries to the trust

If a trust names you to receive money or property, you clearly have an interest in how a trustee administers the trust. Therefore, you may litigate if you have a problem with the asset division. You might also believe the person who created the trust lacked proper mental capacity when arranging the trust. This could give you grounds to contest the trust due to undue influence.

Excluded beneficiaries

As AARP points out, only 34% of Americans even make an estate plan, but those who do should be careful of errors such as beneficiary mistakes and conflicts. In some cases, individuals who have a relative who failed to name them as heirs end up contesting the will on the basis of their exclusion.

Likewise, would-be beneficiaries might lodge a legal complaint that they should receive from the trust based on their relationship with the trust creator. The exclusion may be a mistake or deliberate, or it could be due to coercion from another party.

Successor trustees

Sometimes there is an individual in line to take over trust management upon the resignation of the original trustee or if the first trustee cannot serve. A successor trustee can contest the trust on the basis of issues including improper trust funding or management by the existing trustee that could impact their future duties.

Simply feeling dissatisfied with the trust usually does not justify legal action. There must be legitimate grounds like trustee misconduct, claims of forgery or valid doubts about the mental capacity of the trust creator. Due to the difficulty and expenses involved, individuals should weigh whether the potential benefits make bringing a contest worth pursuing.

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On Behalf of Zigray Law Office, LLC | Nov 21, 2023 | Trust Contests

Caring.com’s 2022 Wills Survey uncovered that 33% of Americans do not have an estate plan. Those individuals who do have a plan may still not understand what could happen after their deaths.

One potential complication is someone contesting a trust. People often use trusts because they allow for easy planning and safeguarding of their wishes. However, if someone has an issue, it could lead to a trust contest. However, contesting a trust has its limitations, such as the time limit under Ohio law.

Statute of limitations explained

The statute of limitations is a set time in which a person can raise concerns about a trust. It is a safeguard that ensures the estate resolves trust-related disputes within a reasonable timeframe. The rationale behind this rule is to promote fairness and efficiency in the legal system. By imposing a time limit, the law encourages prompt resolution of disputes, preventing stale claims that could arise long after the death.

In Ohio, this limit is two years from the date of the trustor’s death or six months after the contesting individual received notice of the trust.

After the time limit

Ohio’s legal framework emphasizes the importance of diligence. If an individual discovers potential grounds for contesting a trust, they must act promptly. Waiting too long may result in the forfeiture of the right to contest and leave them without legal recourse.

Ohio residents must be aware of the statute of limitations if they believe they have grounds to challenge a trust to preserve their rights. Ignorance of the law is not a valid excuse and will not erase the expiration of the time limit.

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On Behalf of Zigray Law Office, LLC | Nov 15, 2023 | Guardianships

Guardianship and conservatorship in Ohio are legal arrangements designed to protect individuals who cannot make decisions for themselves due to incapacity or disability.

The probate court oversees the selection of guardians and conservators. It seeks to appoint responsible individuals who are capable and focused on the best interest of the incapacitated person.

How are guardians or conservators appointed?

Typically, a concerned family member or other interested party petitions the probate court to appoint a guardian or conservator. The court conducts hearings and evaluates evidence to determine the individual’s incapacity. It then evaluates the suitability of the proposed guardian or conservator.

What is guardianship?

Guardianship addresses the personal and healthcare needs of an incapacitated person. The probate court appoints a guardian to make decisions about the individual’s living arrangements, medical treatment and other personal matters.

The appointment of a guardian is a serious matter and is governed by section 2111.02 of the Ohio Revised Code. Nominations must be in writing and bear the signatures of two witnesses.

What is a conservatorship?

Conservatorship deals with the financial affairs of an incapacitated person. The court appoints a conservator to safeguard the financial well-being of those who are unable to manage their own finances due to age, disability or other factors.

The court will conduct a thorough examination of potential conservators. It seeks to ensure that the candidate is a qualified and trustworthy individual.

Ohio law prioritizes the least restrictive alternatives when considering guardianship or conservatorship. The court aims to balance the need for protection with the individual’s right to autonomy. The court may choose to take less intrusive measures before resorting to guardianship or conservatorship. This may include powers of attorney or advance directives.

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On Behalf of Zigray Law Office, LLC | Oct 24, 2023 | Will Contests

Finding out your loved one has excluded you from their will can make you feel different emotions—confusion, disappointment and so much more. While a will is a legal document, you might also consider it a form of recognition of your relationship with the decedent.

If you had assumed you would see your name on the will, but didn’t, one of the first things you might consider is contesting the will in court. However, the judge will not allow just anyone for just any reason to bring the issue to court. Before you get into gear, you have to confirm some crucial information.

Do you have a right to contest?

Before anyone can challenge a will, they must first have a sufficiently grounded relationship with the deceased, such as an heir or similar survivor. These are the people who have a financial interest in whatever happens to the will during probate.

If you fall under this category, you already have the first requirement to file a petition to contest the will’s validity.

Are there grounds to contest the will?

In Ohio, you cannot just contest a will because you feel that your exclusion was unfair. You need to prove that there are legitimate grounds to challenge the document, which includes the following:

• The testator’s lack of testamentary capacity
• Undue influence over the testator
• Forgery
• The existence of multiple wills

If you believe a legitimate ground exists to challenge the will, you have to gather the necessary evidence and strategize your civil action. Contesting a will is complex, so you must come prepared with adequate research and competent representation.

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On Behalf of Zigray Law Office, LLC | Oct 21, 2023 | Will Contests

Life insurance policies and bank accounts come with beneficiary designation documents, which list recipients of assets. While designating beneficiaries might seem straightforward, it can lead to disputes and complications if not handled with care.

Fortunately, understanding the common reasons for disputes can help avoid potential issues among your heirs after you are gone.

Outdated information

Life is dynamic, and beneficiary designations should reflect life changes. Failing to update beneficiary information after major life events like marriage, divorce or the birth of children can create confusion among heirs. This may result in conflicts when outdated designations do not align with an individual’s current intentions.

Multiple beneficiaries

While you can designate multiple beneficiaries, you must do so carefully. This includes specifying the distribution percentages to avoid disputes. For instance, if someone names their three children as beneficiaries without indicating how to divide the assets among them, it can lead to disagreements regarding who gets what.

Beneficiary predeceases

A common but often overlooked issue is when a beneficiary predeceases the account holder. In such cases, it is important to specify alternative beneficiaries or contingent designations to avoid disputes about where the assets should go if the primary beneficiary is no longer alive.

Legal or financial complications

Legal issues can also give rise to disputes. For example, if a beneficiary has legal issues or financial liabilities, distributing assets to them can be problematic. Creditors or legal authorities may stake a claim to the assets, leading to disputes over who rightfully deserves the inheritance.

Competing claims

Sometimes, multiple individuals feel entitled to the same assets. This typically occurs when there is confusion about the account holder’s intentions or if there is a dispute over the validity of the beneficiary designation. Competing claims can result in lengthy legal battles and strained relationships among family members or loved ones.

Lack of communication

In many cases, you can avoid beneficiary designation disputes through open communication. Failing to discuss one’s intentions with potential beneficiaries can lead to misunderstandings and disagreements. People often assume they know the desires of the account holder, which may not align with the actual beneficiary designation.

According to AARP, 32% of Americans in 2022 stated that they put off estate planning. Along with wills and other tools, making sure that beneficiary designations are accurate is an important step to protect your assets.

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On Behalf of Zigray Law Office, LLC | Oct 13, 2023 | Will Contests

An individual’s estate plan essentially outlines their wishes for their legacy. The instructions that they leave for their loved ones will determine what happens to their property and also what kind of support their closest family members will receive as a result of their estate.

Occasionally, those who survive a decedent will question the validity of their estate planning paperwork. Sometimes, those questions may lead to probate litigation. One of the more common reasons that families in Ohio take their concerns about an estate plan to probate court is the belief that a testator may have lacked testamentary capacity.

At its most basic, the claim that someone lacked capacity means that they have experienced cognitive decline that prevents them from creating legally binding documents. In Ohio, there is a very specific standard applied in such cases.

What factors determine testamentary capacity in Ohio?

The Ohio probate courts have previously had to rule on cases where family members have questioned if someone had the mental acuity to put together a will. The courts recognize four standards that directly influence whether or not someone has the necessary capacity to create new documents or update existing ones.

The first is that the adult understands the basic impact of estate planning and what the process means for them. That dovetails with the second, which is that the testator must understand what property will comprise their estate when they die. The third requirement is that someone must be able to remember the people they intend to name in their documents. Finally, the individual must have the ability to mentally consider their relationships with others.

Cognitive decline, dementia, severe mental health challenges and Alzheimer’s disease are all conditions that may prevent someone from meeting all four of those crucial legal standards. Provided that family members can establish that someone does not meet these crucial standards, it may be possible for them to contest a will successfully and have the courts set it aside.

Seeking legal guidance and learning about the specific requirements for will contests in Ohio can help families better evaluate whether pursuing probate litigation would be worthwhile given their specific circumstances.

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On Behalf of Zigray Law Office, LLC | Sep 30, 2023 | blog, Probate Litigation

When planning for the distribution of your assets after your passing, it is important to consider who will execute your will. In many cases, people choose a single executor to manage their affairs.

However, there are situations where having multiple executors can be a wise decision. Preparing for probate is a necessary part of estate planning, so it is best to explore the benefits and potential drawbacks of having multiple executors for your will.

The role of an executor

An executor is the person responsible for carrying out your wishes as outlined in your will. They ensure the distribution of assets to your beneficiaries, the settlement of debts and the management of your affairs.

Benefits of multiple executors

One significant advantage of having multiple executors is the sharing of responsibility. Managing the tasks involved in executing a will can be demanding, and having more than one person can ease the burden.

Different executors may also possess diverse skill sets that can be beneficial. For example, one executor might be financially savvy while another is excellent at handling administrative tasks.

Considerations when choosing multiple executors

While there are advantages to having multiple executors, there are also some important considerations to keep in mind:

• Conflict Potential
• The need for coordination
• Complexity in probate

Ultimately, the choice of whether to have multiple executors for your will depends on your unique circumstances. Consider the complexity of your estate, the personalities and abilities of the individuals you have in mind and your desire for added oversight.

Studies show that upwards of 68% of Americans do not have a will. Of those who do have a will, many might overlook the importance of naming an executor, let alone the possibility of naming multiple executors. Taking a thoughtful approach to your estate plan can help smooth over the probate process when you are gone.

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On Behalf of Zigray Law Office, LLC | Sep 30, 2023 | blog, Probate Litigation

Inheritance disputes can arise when loved ones pass away and leave behind a will or assets to distribute among heirs. These disputes can be emotionally and financially draining for families.

Inheritance disputes often result in strained relationships or even permanent rifts. While there can be various reasons for inheritance conflicts, three situations are particularly likely to cause disputes.

Unequal distribution of assets

When a deceased individual leaves behind a will that favors one heir over another, resentment can fester. This inequality can occur for various reasons. Some may believe that a certain sibling received more love and attention during the deceased’s lifetime. Others might feel that they contributed more to their parent’s care.

Ambiguity in the will

If the will is unclear or open to interpretation, family members may disagree about the deceased’s intentions. Vague terms, such as “fair share” or “valuable items,” can lead to confusion and disagreements over what exactly those terms entail. To avoid such disputes, it is essential for the will to be meticulously written, leaving no room for misinterpretation.

Involvement of step-families

When a deceased individual has both biological and step-children, it can lead to disputes over the division of assets. To minimize conflicts, open and honest communication among all family members is a must.

Some studies suggest that there may be as many as 3 million probate cases in the United States each year. While many families experience a smooth transition through probate, it is important to acknowledge the potential for a dispute along the way.

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On Behalf of Zigray Law Office, LLC | Sep 1, 2023 | Uncategorized

When creating a revocable living trust, the grantor or someone they can count on can serve as its trustee. However, a trustee may become unable to fulfill their duties for a number of reasons such as death and incapacity. In that case, a successor trustee can step in.

What is a successor trustee?

A trustee administers trust assets and disburses them to beneficiaries in accordance with the grantor’s wishes. The grantor can act as the initial trustee, or they can choose someone they have confidence in such as a sibling or a friend.

However, a trustee may become unfit to serve if they die, become incapacitated or breach the trust document. Without a trustee, the trust’s assets will be left unmanaged and may stop the beneficiaries from receiving what is due to them.

Fortunately, the grantor can avoid this by naming a successor trustee. This person can take over and carry out the responsibilities the grantor left for them in the Declaration of Trust.

Responsibilities of a successor trustee

The Declaration of Trust is a document that says what the trustee is responsible for and how much power they have. It also inventories the assets held in the trust and how to administer them.

Generally, the successor trustee carries out the same responsibilities as the initial trustee. They bear the responsibility of overseeing the trust’s assets and distributing them to the named beneficiaries with as little waste and loss as possible.

The duties of a successor trustee often include the following:

• Notify the family, beneficiaries and financial institutions of the grantor’s passing
• Provide beneficiaries with copies of the Declaration of Trust
• Work with the executor of the grantor’s estate to settle any outstanding debts
• Account for any expenses paid using the trust
• Close the grantor’s accounts if they are no longer necessary
• Distribute the assets of the trust to beneficiaries as per the grantor’s instructions

Grantors may rest easier if they have a successor trustee. Knowing that no matter what happens, their loved ones will have support, can be a comfort.

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On Behalf of Zigray Law Office, LLC | Aug 11, 2023 | Will Contests

Family members and beneficiaries sometimes worry that the will someone has drafted isn’t accurate and legally valid. One of the more common concerns has to do with someone’s testamentary capacity or legal ability to enter a binding agreement.

The effects of age often lead to issues with memory and cognition that diminish someone’s ability to create legally binding testamentary paperwork. Older adults are more vulnerable to pressure from outside parties and might make changes to estate planning paperwork later in life that seemingly contradict their long-standing preferences. They might also fall into unhealthy patterns of thinking that ultimately influence what they believe should happen with their legacy.

What happens if family members believe that someone lacked testamentary capacity when they drafted or revised their estate planning paperwork for the last time?

The family may initiate probate litigation

Provided that family members have some kind of evidence to support their claims, they might be able to go to probate court and ask a judge to intervene when an estate plan seems to be the result of someone’s declining cognitive ability and not their true lifelong wishes. Those asking the courts to set aside a will or similar documents need evidence to convince a judge that doing so is appropriate.

Medical records showing that someone had debilitating conditions, like dementia, can help. So could financial records showing that an individual was incapable of managing their own resources or the testimony of witnesses who can affirm that someone no longer had the same rational approach to personal matters in their last months as they did throughout most of their life.

Provided that the courts agree with the claim that someone lacked capacity at the time that they drafted or updated their documents, the courts may invalidate or set aside those documents. They may either defer to older estate planning paperwork or apply intestate succession laws that determine how people divide the property of those who die without a will.

Although it can delay estate administration, going to probate court over concerns about someone’s capacity and last wishes could help uphold their desired legacy when there are questions about their final documents. Understanding the value of going to probate court may help those who want to see their loved one’s wishes upheld to make informed decisions about their options.

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