Disputes and Disagreements

disputes and disagreements in probate processDisputes in probate arise for a number of reasons. Relatives may be dissatisfied with the distribution of a decedent’s (the deceased person’s) property. For example, one of the decedent’s children may have been under the impression that the estate would be divided equally among the children. Another child, who cared for a parent in their old age, may disagree and believe they are due a greater share of any assets.

Sometimes one has to step back and ask what is the real reason for this strife over what one has inherited or what one has not received from a loved one. Death may cause low-lying family disputes to surface and a dispute which appears to be over property may actually be a disagreement about family relationships. Grief, both acknowledged and unacknowledged, is an emotion that can create tension among family members and misdirected anger could result in a lawsuit. A dispute may also arise between the surviving spouse and the children of the decedent’s earlier marriage.
Sometimes the dispute is with the individual who is handling the estate and sometimes it is a challenge to the validity of the will.

A disagreement may occur at any point in the probate proceedings. The executor or administrator of the estate must be prepared to attempt to resolve the dispute. He will likely need legal assistance. Sometimes there will be no way to avoid litigation.

When There is a Will

When a loved one dies “testate,” there is a will that can be presented to the probate court and usually it will be found valid. In this case, there are generally fewer disagreements about the contents of the document. But a will that is not executed in conformity with Ohio statutes will be disregarded by the court and the estate will be handled as though the decedent died “intestate” or without a will. Each state has its own laws regarding what happens when a person has written a valid will or what happens otherwise but there are still areas for disagreement.

A person who has a right, claim or other interest, usually financial, in a particular matter is an “interested party.” If one or more “interested parties” to the probate proceedings believes the deceased person did not have the mental capacity to create a will at the time he or she signed the document, the will’s admissibility to probate may be challenged on the basis of “lack of mental capacity.”

A will challenge does not happen often, but sometimes family members learn of a will’s content and suspect something is amiss. They are concerned that “undue influence” may have been exerted over their loved one at the time of preparation of the will. According to Ohio statute, the challenger(s) must show that this influence was actually exerted, that the testator was susceptible to it and that there was opportunity for the influencer to act and to cause the resulting will.

Challenges in the Administration of a Will

The person chosen to be the “executor” of the will may be chosen by the decedent who names an executor in the will. Or, if the deceased dies intestate, an “administrator” of the will be named. The “executor” has an obligation to carry out the instructions in the will, or if there is no will, the “administrator” must follow the instructions of the court. This must be done in a timely and careful manner.

If the executor or administrator does not perform his duties, or if the heirs or beneficiaries start to suspect the executor is taking advantage of his position to the detriment of the heirs and beneficiaries, they can initiate a legal proceeding to oust the executor/administrator relieving him of his control over the probate process. Those wronged by the actions or inaction of the executor/administrator may recover any assets or property that were wrongfully disposed. This is considered a breach of fiduciary duty. (A fiduciary is a legal relationship of trust between two or more parties.)

The executor may receive pay for performance of his or her duties but it is not mandated in Ohio that an executor or an administrator be compensated. The executor may hire an attorney to ensure that the estate is properly settled according to law.

Handling Probate Proceedings Yourself

When a probate proceeding must be conducted—whether it is admitting a will, challenging a provision in a will or questioning the document in its entirety, it is important to have competent legal counsel by your side. Many of these proceedings must be resolved through diligent application of complex laws to the facts confronting the court. The ability of the decedent’s intentions and desires to prevail depends on being able to demonstrate that the dispute can only be resolved in one way given the applicable law. Only someone who thoroughly knows this law can be of invaluable assistance. Probate law is not something one learns by spending a few hours at the library. Thus, it is generally not wise to consider handling probate proceedings yourself.

A Famous Will Dispute

Anna Nicole Smith, an actress and Playboy model, was the widow of oil tycoon, J. Howard Marshall, whose estate was said to be worth $1.6 billion. Anna Nicole was 26 years old when she married Marshall in 1994 and was still married to him when he died 13 months later in 1995 at age 90. It was the general belief that Anna was not a wife to the octogenarian and did not even live with him. He left her nothing in his will. She claimed she was owed half of her late husband’s estate. For more than a decade she fought in the courts against Marshall’s son, E. Pierce Marshall, who disputed her claim for half of his father’s fortune. Another son, Howard III, also claimed he had been left out of the will.

Both E. Pierce Marshall and Anna Nicole died before the case was resolved. Pierce died in 2006 at age 67 and Anna Nicole died in 2007 at age 39. The case was pursued by Pierce’s widow and lawyers for Smith continued the litigation on behalf of Anna Nicole’s daughter, Dannielynn, born in 2006. The much-publicized will battle went to the U.S. Supreme Court twice and finally concluded in 2011—16 years after Marshall died.

There can also be disagreement among surviving relatives if there has been a lifetime gift to one child and it is not clear whether it should be considered a lifetime transfer or if it should be subtracted from that person’s share of the estate. Written evidence of an “advancement” may be needed here to help resolve the intentions of the decedent. Sometimes the probate court can help to provide a definitive answer when a term in a will or trust seems contradictory or ambiguous.

Guardians and Fiduciaries

Probate courts are also the forum for conservatorships and guardianships. In a guardianship, a probate court appoints a person or legal entity to be legally responsible for another person and that person’s property. In a conservatorship, a judge appoints a person to manage the financial affairs and/or daily life of one who has physical or mental limitations. Disputes may arise in these proceedings if the protected person contests the guardianship or if family members disagree among themselves whether this is the right approach for their relative. A guardian or a conservator can be removed by the probate court if the appointment is not successful.

It is also possible to have a fiduciary appointed. This is someone who acts on behalf of another based on a relationship of trust or confidence. It is a legal relationship between two or more parties. A family may disagree over who should act as a fiduciary. Beneficiaries of a trust or estate may be concerned about investment decisions or property management issues which the fiduciary has under his control. If a fiduciary is also a beneficiary, he may be perceived as being in conflict of interest whether he actually is or is not. The probate court can also remove a fiduciary if necessary.

Funeral Disputes

Funeral disputes are another area where the deceased hopefully will have instructions concerning their wishes spelled out in a legal document. Otherwise, it is possible burial will be delayed. Singer James Brown was not buried for several months because members of his family were disputing his final wishes.

Families have fought about the type of religious service to hold for their loved one, whether the deceased wanted to be cremated and what should be put on the headstone. If a person has a Funeral Directive form filled out in the state of Ohio, this can answer many questions concerning the“right of disposition.”

This form also designates a person to preside over the right of disposition. Under Ohio law, this person has the authority to consent to an autopsy or postmortem examination on the deceased’s behalf. In deciding whether a particular individual should be given the authority to make funeral decisions, the court considers:

• Whether evidence demonstrates a close personal relationship between the deceased and the person seeking authority
• The reasonableness and practicality of that person’s plans for the deceased’s funeral, burial, cremation or final disposition
• The willingness of the person making decisions to pay for the funeral
• The convenience and needs of other family members wishing to pay their final respects
• The express written desires of the deceased person.

Resolving Disputes and Disagreements

We have extensive experience helping people resolve disputes and disagreements during the probate process. Our Ohio probate litigation attorneys offer free consultations to anyone who may be involved in a dispute or disagreement. Our free consultation are just that – FREE. There is no cost whatsoever and you are under no obligation to hire our law firm. To request a free consultation, please call us at 1-888-467-5105, chat with one of our 24-hour live chat operators or send us a website message. We are available at all times including weekends, evenings and holidays.

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