On Behalf of Zigray Law Office, LLC | Jan 11, 2022 | Will Contests

Adults have the legal right to create their own will or estate plan under Ohio law. Once someone reaches adulthood, they theoretically have the legal authority to enter into binding contracts and make crucial legal decisions for themselves. 

Sometimes, adults can develop medical conditions that may affect their cognitive function and decision-making ability. In scenarios where someone creates legal documents, like a will, after experiencing cognitive decline, the courts may choose not to uphold those documents due to the person’s lack of capacity. 

What are some medical conditions that could lead to allegations that someone lacked testamentary capacity when creating an estate plan? 

Alzheimer’s disease

Some people experience major medical issues when they age, and Alzheimer’s disease is one of the most severe conditions affecting older adults. Alzheimer’s disease can undermine someone’s independent living ability and rational thought processes. Someone who created estate documents after a diagnosis with Alzheimer’s disease, unless it is in the earliest stages, may not have enforceable documents. 

Dementia

Numerous medical conditions can lead to dementia, including Alzheimer’s disease. Dementia is a medical term for severe cognitive disruptions that limit someone’s ability to understand the world around them. Anyone with dementia will likely need support managing their affairs and be unable to make rational decisions. 

Severe mental health issues

There are dozens of mental health issues, ranging from post-traumatic stress disorder to schizophrenia, that can impact someone’s ability to rationally manage their own affairs. If someone tried to create legally binding documents while suffering from a medical condition that affected their cognition, you may have grounds to challenge their estate plan because of their lack of testamentary capacity.

Learning more about will contests should help you determine if your family needs to challenge someone’s last wishes in the Ohio probate courts.

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On Behalf of Zigray Law Office, LLC | Jan 4, 2022 | Power Of Attorney

The idea of being subject to guardianship makes many people nervous. No one wants to have someone else handling all of their major decisions or making decisions without even asking their input. Some people take the step of planning ahead for this possibility. 

They draft powers of attorney that delegate financial and medical authority to someone else in the event of their incapacitation. By taking this step while they still retain testamentary capacity, an older adult can effectively name their own guardian for when they are older and need more support. 

Unfortunately, naming the wrong person as the power of attorney could lead to hardship for an older adult if the person they trust abuses their authority. 

People don’t always put the right limitations in place

The language of someone’s powers of attorney should make it clear what authority and control the agent(s) they named will have. The best protection comes from custom documents that specifically empower someone in certain regards while imposing limits on others. Giving someone only access to one bank account, for example, could reduce the risk of theft. Naming different people for different roles is another common strategy. 

Some people use basic documents with no unique language, and they may even grant one person almost unchecked authority over their finances and medical decisions. The person acting with power of attorney should do what is best for the person who drafted the documents, but that isn’t always what happens. 

Sometimes, family members may need to intervene. Gathering evidence that actions have undermined your vulnerable loved one’s best interest can help you fight back when someone with power of attorney who should want to protect your loved one acts in their own interest instead.

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On Behalf of Zigray Law Office, LLC | Dec 15, 2021 | Will Contests

As someone with an elderly loved one, one of the most frustrating things to deal with is suspecting that someone is negatively influencing your loved one’s choices. Your family member may have created a will that fairly distributed their assets in the past, for example, but you may have just found out that there is a new will that gives everything to a single person.

Figuring out if that’s what your loved one actually wants – or if they’ve been unfairly influenced – is very important, because you and other heirs or beneficiaries may be able to help restore the previous version of the will. If other estate planning documents were affected, you may be able to have them amended or revoked to be sure that your loved one’s true wishes are still carried out.

When may you suspect undue influence?

There are some times when undue influence should be suspected. For example, if you know that your loved one is starting to deal with memory loss or is in the beginning stages of Alzheimer’s, now is the time to keep a close eye on their estate planning documents and other accounts.

If you start to see unusual spending habits come up, or you notice that there is a new person that your loved one is around more than usual, you should look into those situations to make sure everything is happening with a good reason. For example, perhaps your mom or dad just really likes a new caregiver because they have a lot in common and now asks for them by name. Maybe that same care provider is spending a little more time than usual to set up the delivery of medical supplies or other needs to the home. It’s up to you to verify that every change has a purpose that makes sense.

If you see changes that you can’t explain, like missing money, unusual changes in your parent or loved one’s behavior, or extra appointments with attorneys when you normally would have been involved in scheduling them, it’s time to start asking questions. If you find out that your loved one has been influenced, then you should work to quickly correct that influence by looking into your legal options.

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On Behalf of Zigray Law Office, LLC | Dec 9, 2021 | Will Contests

When your parents’ will was read, you expected to get similar assets as your siblings. However, you were shocked to find out that you’d been left much less money. In fact, your parents had only left you a single dollar. 

You were perplexed. Why would they do something like this? What is the point of giving you a single dollar, and why wouldn’t they just leave you out of the will entirely? 

They’re likely trying to prevent a will contest 

The odds are that your parent is simply trying to prevent a will contest on the grounds that you were accidentally forgotten. If they wanted to disinherit you and they just didn’t put your name in the will, you might be able to claim that they didn’t mean to leave you out and that the whole thing was a misunderstanding. This has been the basis for will contests in the past. 

If your parent leaves you a single dollar, they may believe that that is enough to stop a will contest because it proves that they didn’t forget about you. They may also choose to add a disinheritance clause to the will, stating that you’re being disinherited without leaving you anything. 

Do you still have any options? 

You may have options if you still want to start a contest. For instance, maybe you believe that your parents didn’t leave you a single dollar but that one of your siblings altered the will to essentially cut you out by reducing what you got. If you think anything like this has occurred, it can be very complicated, and you need to know all of the legal steps you should take moving forward.

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On Behalf of Zigray Law Office, LLC | Nov 26, 2021 | Trust Contests

The trustee overseeing a trust has a significant influence on the lives of others. They have to manage the assets in the trust. A trustee may need to physically secure and maintain assets like real estate, or they may need to make investment decisions about financial assets used to fund a trust. 

The way that they handle and distribute trust assets may affect the financial stability and opportunities for all of the beneficiaries of the trust. Most trustees will take their responsibilities seriously and act in the best interest of the beneficiaries of the trust. 

Unfortunately, trustees occasionally fail in their legal obligation to a trust and its beneficiaries. What should you do if a trustee has diminished trust resources through improper management or investment?

You may need to ask the probate court to intervene

A simple mistake or even a gross oversight by a trustee won’t automatically diminish their authority over the remaining assets in the trust. The beneficiaries of the trust will need to initiate a challenge against the trustee and the actions they have taken if they want to have someone else step into that role. 

If you have evidence that a trustee made significant mistakes in their management of trust assets, the courts may agree with your assertion and remove them from their position. Having a new trustee take over won’t undo the damage the previous trustee caused, but it can protect the remaining assets in a trust. 

Realizing that you may have to actively challenge a trustee not fulfilling their obligations properly can motivate you to involve the probate court in a trust administration issue.

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On Behalf of Zigray Law Office, LLC | Nov 10, 2021 | Will Contests

There are several reasons why a will can be contested. And fraud is one of them. If the will does not reflect the testator’s true wishes, it may be possible to dispute the document on grounds of fraud. The law defines fraud as intentional deception intended for individual gain.

Fraud is seldom pleaded in a will contest for a couple of reasons. First, most frauds take place in secrecy. Second, the person whose wishes have been altered, the testator, may not be around to testify what their original intention was.

So how do you challenge a will on the basis of fraud?

There are three elements that you need to prove to contest a will on the basis of fraud. Here are these elements:

Misrepresentation

To prove fraud, you must demonstrate that there was a false representation with the goal that the testator will rely on that statement to create or amend their will. The element of “fraud” is often referred to as false representation, and it can come from a relative or a non-relative to the testator.

Intent

Intent is another key element in proving fraud in a will. Simply showing that someone misled the testator into amending their will is not sufficient proof of fraud. You must also demonstrate that the party who misled the testator intended to benefit unfairly from the said amendment.

Injury

Finally, to successfully prove fraud in a will, you must demonstrate that some injury occurred as a result of the fraudulent changes to the will. The injury may not necessarily mean that the testator was tricked into changing their will, but rather that the changes resulted in the intended heirs not getting what was duly meant for them.

Not many things are as upsetting as realizing that your loved one has been tricked or taken advantage of. If you believe a loved one has been a victim of fraud during the estate planning process, you might want to seek professional help to ensure that justice prevails.

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On Behalf of Zigray Law Office, LLC | Oct 27, 2021 | Probate Litigation

While the majority of people are naturally devastated when a loved one passes on, this is not always the case for some folks. It is not unusual for some individuals to see an opportunity and attempt to reap where they did not sow by helping themselves to the deceased person’s assets and other personal possessions. 

Anyone can commit probate fraud, from career criminals to people who were closest to the deceased and are thus in the highest positions of trust. For instance, an executor could manipulate figures with the goal of diverting the decedent’s assets from the designated beneficiaries. The importance of staying alert when it comes to probate fraud cannot be overstated. 

Elements of probate fraud

Here are the four elements of probate fraud that you should be on the lookout for if you suspect that something mischievous could be going on with your loved one’s estate:

1. False statements about material facts
2. False representations
3. Threats of harm by the executor
4. Withholding of vital information

However, it is important to understand that not every false or inaccurate statement can be a sign of probate fraud. The falsehood must be about a specific material fact. A fact is considered material when it plays a vital role in the individual’s decision-making. A fact may be deemed material if an individual solely relied on it to act the way they did. 

Can you sue for false representation?

Yes, you can. Probate fraud litigation occurs when an interested party makes a claim of fraud. However, to validate your claim, you must be able to provide factual evidence that backs up what you are saying. 

Probate fraud is a serious problem. If you suspect that’s what is happening with a loved one’s estate, act quickly to preserve your rights and the assets involved. 

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On Behalf of Zigray Law Office, LLC | Oct 18, 2021 | Probate Litigation

Debt has a way of accruing quickly, especially when someone has limited income. Older adults are at particularly high risk for acquiring more debt than they have any means of repaying.

Once someone retires, they may have a fixed income based on a pension or Social Security benefits. If their nursing home expenses or medical costs exceed that income, they might have to use credits to buy their groceries or pay their utility bills. They could also potentially accrue a substantial amount of debt to the facility where they live or to the hospital that treats them in their last days of life.

As someone who should inherit assets from an estate, it’s important to understand what the debt of the deceased party might mean for your right to inheritance.

Ohio creditors can bring a claim against the estate

Ohio state law is clear that all creditors owed money by a deceased individual have grounds to bring a claim against that individual’s estate. Whether the debt is due to an account or from a judgment related to an injury caused by the deceased person, the right of a creditor to repayment generally supersedes the rights of family members and beneficiaries to an inheritance.

The personal representative for the estate will have to repay all of the creditors who make a claim against the estate before they distribute any property to the beneficiaries listed in the estate plan. If they distribute property without repaying the debts, the creditors who don’t receive reimbursement may be able to bring a legal claim against the executor for the amount that went unpaid.

Timely and accurate estate administration helps protect someone’s legacy

An executor should take timely steps to repay debts and turn off accounts in the name of a deceased individual. Delays in performing these important tasks could ultimately result in higher amounts of debt that diminish what beneficiaries receive.

Making sure that an executor acts in a timely manner is of the utmost importance for beneficiaries worried about losing their inheritance due to death or the mismanagement of estate assets. Knowing that you can bring a challenge against an executor who mismanages estate assets or fails to communicate with creditors in a timely manner can help you protect your inheritance.

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On Behalf of Zigray Law Office, LLC | Oct 14, 2021 | Probate Litigation

Often, the process of probate can be time-consuming and stressful for those involved. Parties can find disputes within the process an overwhelming experience.

However, many of the trying factors in probate proceedings can be the result of misconceptions. Identifying some of the common misconceptions about probate in Ohio could make the procedure more bearable. Outlined below are three of the more widely circulated misconceptions about probate.

Probate fees are always extremely expensive

Frequently, the fees involved in probate only take up a small percentage of the combined estate. Having said that, the more conflict involved in probate proceedings, the higher the cost is likely to be. As a result, having a solid estate plan in place could provide a means of reducing probate costs.

Probate always takes years to complete

Although there are certain waiting periods set aside for creditors to make claims, once all debts and taxes have been satisfied, the estate can generally be closed. In fact, attorneys frequently settle estates within a one-year period.

That being said, where challenges are brought against the will or estate, or where the estate contains vast amounts of complex assets, the procedure can take longer.

The state will always keep all assets

Different states have various laws on probate. However, it is often the case that surviving children will inherit the estate. If no immediate relatives can be traced, then assets will commonly go to a more distant relative. As a whole, assets will only go to the state in cases where no relatives can be traced.

Understanding the common misconceptions about probate could ensure that you are better placed to make plans for the future. It is important to understand that you have legal rights and protections in Ohio.  

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On Behalf of Zigray Law Office, LLC | Sep 30, 2021 | Will Contests

There are some very good reasons to contest someone’s will — and you may feel that you’re on solid ground with your objections, both legally and morally. 

Before you begin, however, there are a few key things you need to keep in mind:

You need to act quickly

There may be a huge emotional component to your decision, especially if you believe (or know) that your actions will either create or widen a rift between you and some of your other relatives. The prospect of all the drama and upset may have you on the fence about the issue — but you don’t have long to decide. 

In Ohio, you have a maximum of three months to file the appropriate complaint with the probate court. After that time elapses, you may lose your ability to contest the will forever.

This will generally be an expensive process

Maybe the issue is a matter of principle, and the money isn’t important. Maybe the money involved is significant. Either way, a long legal battle can get expensive, so make sure that you’re ready for the bill.

To preserve the value of the estate, a lot of litigants will eventually resolve their disputes over a loved one’s will through negotiations rather than a trial. Leave yourself open to that possibility.

Your relationship with the other parties will probably never be the same

You may know this already — and you might not care if, for example, your stepmother never speaks to you again. Just be prepared for the fact that your entire extended family may end up taking sides. Will contests can easily create wounds in families that never heal.

Contesting a loved one’s will is seldom done lightly or easily — but if you genuinely believe your loved one’s will doesn’t reflect their true intentions, you have every right to take action. 

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