Contingency Payments Available in Probate Litigation

Contingency Fees for Probate LitigationMost people don’t give a lot of thought to “probate” and the various issues that can arise surrounding this legal process. When someone in the family dies and sometimes even before that, “probate” can become a matter that may need attention.

Persons facing probate issues often ask, “How can I afford quality legal representation to help me understand what is going on and to fight for my interests?” You can do this by choosing a law firm that offers “contingency.”

First, what is “probate” and “probate litigation?”

What is probate and how could it possibly affect me or my family?

“Probate” is a court-supervised process and is the first step in administering the estate of a deceased person. Probate distributes the property of the deceased according to a specific legal document or Ohio law. Instructions provided within the legal document, such as a will or trust, must be followed so that assets are transferred to those entitled to them according to the wishes of the person (the “testator”) who wrote the document. If there is no will or trust, probate will be governed by Ohio probate law.

The probate process also aims to resolve any claims against a person’s estate including any taxes due.

The term “probate” can be used 1) to describe the legal process 2) to describe the court in which it takes place or 3) or to describe the distribution of assets.

Some assets—such as estates worth less than $5,000—may not have to “go through probate” and some property is considered “non-probate property.” The latter includes insurance or retirement benefits payable to a named beneficiary; accounts payable on death (POD) or transferred on death (TOD) to a named beneficiary; property or assets held in a trust; and property the decedent and another person held as joint tenants with right of survivorship.

What is probate litigation?

Often disagreements or suspicion of questionable activities arise during the probate process or even immediately after an individual’s death. These matters need to be worked out either inside an Ohio courtroom or outside a court of law. Disputes often surface over inheritance or the appointment of someone to serve as administrator of the estate. All can easily become issues of “probate litigation.”

Although probate litigation can take numerous forms, any challenge to a will must be made during the probate process. The person making the challenge must have “a monetary interest” in the matter which makes them “an interested party.” In other words, if the challenger does not have even the potential of a rightful claim to the decedent’s assets, he or she is not an “interested party” in the eyes of the law. After the will is “probated,” a complaint may be filed by an interested party, but this does not mean a challenge will be successful.

The probate court will hear the case and decide the matter according to Ohio law unless the parties are able to otherwise settle their dispute.

“Contingency fees” in probate cases

Sometimes even the perceived cost of litigation can stop someone from pursuing justice and protecting the wishes of loved ones who have died. This is why some attorneys offer “contingency fees” in Probate matters including litigation.

When a lawyer accepts a case on a “contingency” basis, he or she agrees to litigate the case without receiving payment unless the lawyer obtains a recovery in the case through a court judgment or settlement. In a contingency fee agreement, the lawyer therefore defers his fees until the case is finalized.

If no settlement is received or amount awarded in a verdict, the attorney does not receive payment from the client for his or her services because the fee is based on a percentage of the settlement or verdict.

At Slater & Zurz LLP, an Akron-based law firm with offices throughout Ohio, such contingency fees are offered in various types of cases and in certain probate cases as well. This enables the client to utilize the experience and knowledge of an accomplished attorney without having to worry about making payments to a law firm.

Probate cases can be lengthy and the contingent fee arrangements place the risk upon the law firm if no recovery is secured. Contingency fee arrangements allow claimants to pursue quality probate or trust litigation and to file a lawsuit even if they have limited financial means.

Among the types of probate and trust cases in which a contingency fee agreement may be beneficial are:

  • Breach of Fiduciary Duty
  • Estate or Trust Concealment
  • Exploitation concerns such as Self-dealing by a Fiduciary
  • Financial Abuse of the Elderly
  • Inheritance Disputes
  • Lack of Capacity claims
  • Mismanagement of the estate or mismanagement/misappropriation of trust assets
  • Misuse of Power of Attorney
  • Undue Influence claims

Principal roles in the probate process

If you are involved in a probate proceeding, it is important for you to know who is in charge. As stated earlier, probate is under the probate court’s supervision.

If a person is named in a will as an “executor,” that person will generally take charge of the estate. If there is no will or the person named as executor is not available or is not willing to accept the position, the probate court will appoint an “administrator.” A surviving spouse has priority to be appointed administrator unless a will states otherwise.

The court will issue a document to the executor or administrator known as “Letters of Authority” detailing what he or she must do and providing necessary authority for that person. There may be more than one executor or administrator for an estate. Often, if more than one is named, the other (or others) agree to “sign over” authority. For example, if a child of the deceased lives out of state and both he and his sister were named executors in the will, the brother may agree that his sister should be the executor because it will be easier for her to perform functions such as preparing and filing legal documents and notices and attending court hearings.

During probate, the executor or administrator must:

  • Prove in court that a deceased person’s will is valid (normally routine)
  • Gather and inventory the deceased person’s assets and safeguard them if necessary
  • Have those assets appraised and file an asset inventory with the court
  • Pay any debts and taxes
  • Distribute remaining property as the will or state law directs
  • Dispense of estate assets
  • File a full accounting of all receipts and disbursements

The executor or administrator may need legal assistance when dealing with their responsibilities. Monies for this and other expenses will likely come from the estate. An executor or administrator can be paid for their services pursuant to statute. However, this may be waived.

It is very important for the person in charge of the estate to remember to keep careful records of how estate assets are handled and distributed and to keep account of all activities of the estate. The executor or administrator could be held personally liable for his or her actions or failure to act.

Examples of cases that could result in probate litigation

You may be surprised to learn that legal experts report that in 99% of probate proceedings there are no issues.

After a spouse challenge, the most successful probate challenges, according to findlaw.com, are Lack of Testator Capacity and Undue Influence.

Lack of Capacity

In lack of capacity, the interested party making this claim. This claim means the author of the will (the testator) is alleged not to have been “capable” at the time the will was signed. In other words, the testator was not aware of what he or she was doing when the will was prepared and could not make valid decisions about his or her property due to a lack of mental capacity. Sometimes the claim is made that the testator was not even aware of their heirs and the property he or she owned.

A will challenged on these grounds will likely require medical experts such as doctors and/or mental health providers to support the analysis that there was a lack of capacity present when the will was signed.

According to Ohio law, it is possible that a person who lacks capacity can experience “a lucid moment” or moments during which they can sign their will and meet the elements of necessary mental capacity even though that person is not functioning capably most of the time. The key is whether the person knew what they were doing at the time of execution.

Undue Influence

In this type of probate challenge, the claim is made that another person exhibited control over the testator that made the testator write the will to favor that person. For example, a neighbor is willed the testator’s assets although the neighbor may have known the testator for a very short time and there are other more plausible beneficiaries.

However, just because a neighbor is a recent acquaintance or not a blood relative of the deceased does not mean he or she cannot legally be a monetary recipient in a will. To prove a case of undue influence over the testator, it must be shown that there was 1) a susceptible testator 2) another party who had the opportunity to influence the susceptible testator 3) an actual imposition of improper influence occurred and 4) a result showing the effect of the undue influence.

If the court finds the testator was forced or tricked into making the will, it will not enforce the document.

Why one should consider at least speaking with an experienced probate lawyer. . .

Probate issues can be emotional and financial and can become quite complex. At Slater & Zurz LLP, some of the firm’s attorneys have been handling issues related to the administration of an estate for more than 40 years. Therefore, they can offer clients extensive probate litigation experience.

The firm represents beneficiaries of wills and trusts and will also represent executors and trustees who find they must defend against the actions of beneficiaries. If you have a simple conversation with one of these attorneys, it may give you a better understanding of how to proceed with your probate issue. There is no obligation to hire any attorney you consult with at Slater & Zurz LLP.

Keep in mind that all consultations are FREE and there is no time limit on the initial meeting. Contingency fee arrangements are available at Slater & Zurz LLP and you can find out more about them when you speak with an attorney.
You can contact the firm in a number of ways—by calling 1-888-467-5105 or by visiting the website slaterzurz.com where you can send a message to the firm or chat with one of the 24-hour live chat operators. You can also visit probatelawyerohio.com for further information.

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