Probate Litigation

Probate Litigation in OhioProbate is a court-supervised legal process that may be required in administering the estate of someone who has died.

The term can be used to describe the legal process, the court in which the process takes place, or the distribution of assets. This proceeding is one that concerns certain kinds of property owned by the person who died (the decedent). This is known as “probate property.” Probate distributes the property of the decedent according to his or her will or according to Ohio law if there is no valid will.

The purpose of the probate process is to make sure the deceased person’s debts are paid including taxes, and that assets of the decedent are transferred to those individuals who are entitled to inherit them. If there is a will, these individuals are the “named beneficiaries.” Creditors against the estate have six months to file a claim if the decedent is indebted to them.

Who Is In Charge of Probate Proceedings?

If there is a will, a person may be named in the will as “executor” and that person will generally take charge of the estate under the supervision of the probate court. If there is no will, or the person named as “executor” isn’t available or isn’t willing to serve, the probate court will appoint someone to serve as “administrator” of the estate. If there is a surviving spouse, that person has priority to be appointed as administrator.

The court issues a document, known as “Letters of Authority.” Then the executor or administrator must:

• Prove in court that a deceased’s person’s will is valid (usually routine)
• Gather, inventory and, if necessary, safeguard the deceased person’s assets
• Have those assets appraised and file an asset inventory with the court
• Pay any debts and taxes
• Distribute the remaining property as the will directs, or if there is no will, as state law directs
The persons serving in the executor/administrator capacity may also have to:
• Prepare and file legal documents and notices
• Attend court hearings

After termination of the probate proceeding, the executor or administrator will be discharged by the probate court. The executor/administrator must keep careful records of how estate assets are handled and distributed and must account for all activity involving the estate. Because of the complexity of some of these procedures, it is wise to get the assistance of an attorney.

Probate Litigation

Any challenge to the validity of a will must be made during the probate process. The person or persons making the challenge must have a monetary interest in the matter which makes them “an interested party.” When there is a will challenge, there is often probate litigation.

Probate litigation can take numerous forms as many things can happen during administration of an estate. After a will is “probated,” a complaint against it may be filed. There are areas in which some wills can be contested, but this does not mean a particular challenge will be successful. In a will contest the probate and estate lawyers sometimes represent the beneficiaries of wills (and trusts), but other attorneys can also represent executors and trustees in defending against a claim coming against the will.

If you are advised that your litigation may be successful due to the evidence and witnesses you may present to the court, you may choose to contest a will or defend against a complaint against the will. One type of will contest you may have heard about is lack of mental capacity.

Lack of Capacity

Lack of capacity (of the person who wrote the will) is when an “interested party” is claiming the author of the will (the “testator”) was “not capable” at the time the will was signed. The party challenging the will is essentially saying the testator was not aware of what he or she was doing when the will was prepared, that the testator did not have the mental capacity to make valid decisions about his or her property and may have not even been aware of who her heirs were and/or what property she owned.

Anyone making this challenge should know that it is possible, according to Ohio law, for the “testator” to have “a lucid moment” when she signed her will and did not lack capacity at that point, even though she was not functioning capably most of the time.

A will challenge on these grounds may be able to be won if psychiatric or psychological experts are brought into the matter. Depositions from these individuals and others may be needed. An attorney can advise on making a will challenge on these grounds or defending against someone who is claiming the testator had a “lack of capacity.”

Undue Influence

In addition to lack of capacity, will contests in Ohio can also be based on “undue influence” over the testator, or on fraud or forgery claims. For each contest, the interested party making the challenge must be able to prove certain elements.

For example, if your challenge to the will is “undue influence,” you must show that the person you are claiming exerted the undue influence exhibited such control over the testator that the testator wrote the will to favor that person in the distribution of assets. The person who allegedly exerted the influence may be a neighbor with whom your relative was very close. It may be someone your relative recently met. In either case, the challenger to the will must show four elements:

1) a susceptible testator
2) another person in existence who had an opportunity to influence the susceptible testator
3) an actual imposition of improper influence by that person
4) a result showing the effect of the imposition of undue influence.

If the probate court finds the testator was improperly influenced in making his or her will, it will not enforce the document. But as one might guess, this is not an easy case to prove.

Non-Probate Assets

Most common assets do not need to “go through probate” or may go through a simplified probate process. For very small estates, worth less than $5,000, no probate at all may be necessary and the court may be asked for a Summary Release from Administration. The surviving spouse may ask for a summary release if: the surviving spouse inherits everything and is entitled by law to a family support allowance; all of the deceased spouse’s assets are worth no more than $45,000 and the surviving spouse has already paid the funeral costs or is obligated to pay them.

Property That Is Not Probate Property

Non-probate property which is not part of a probate proceeding includes:

• Insurance or retirement benefits payable to a named beneficiary
• Accounts that are payable on death (POD) or will transfer on death (TOD) to a named beneficiary
• Property or assets held in a trust
• Property the decedent and another person held as joint tenants with right of survivorship

Other Areas of Probate Litigation

There are several areas of probate litigation where legal representation would be helpful. These include:

• Appointment and Removal of a Guardian
• Appointment and Removal of a Fiduciary
• Breach of Fiduciary Duty
• Estate Fraud
• Trust Fraud
• Inheritance Disputes
• Exploitation Concerns
• Misuse of Power of Attorney
• Financial Abuse of the Elderly
• Representation of Trustees and Beneficiaries for Issues Related to the Ohio Trust Code
• Trust Litigation

Probate cases often involve a variety of financial and emotional issues which wind up as issues the court must resolve. At Slater & Zurz LLP, we offer clients extensive probate litigation experience. In fact, some of the firm’s attorneys have more than 40 years of experience handling issues related to the administration of an estate.

We represent beneficiaries of wills and trusts and we also represent executors and trustees who may find themselves defending against the actions of beneficiaries.

Please contact us at any time for a free consultation by calling 1-888-467-5105, chatting with one of our 24-hour live chat operators or sending us a website message.  Our free consultations are justs that – FREE. There is no cost whatsoever and you are under no obligation to hire our law firm. A free consultation is a great opportunity to discuss your probate litigation issues in further detailask questions, get answers and professional legal guidance.

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