“Probate” is a process through which a court determines whether or not a Last Will and Testament is valid. If valid, the Will is then “admitted to probate”, and an “executor” is appointed to carry out its terms.
In Ohio, the probate process requires that an executor, or if there is no Will, the appointed “administrator”, file an Inventory and Appraisal describing the assets passing through probate and each asset’s date of death value. In addition, probate requires that executors and administrators file an estate accounting which describes all of the activity that occurred within the estate during its administration.
During the administration process of an estate (whether it be a decedent’s probate estate, a trust estate or a guardianship estate), there are many ways in which the management of the estate might be mishandled. When such problems arise, as described in more detail below, estate beneficiaries and heirs have legal recourse through Ohio probate courts and probate litigation.
When a loved one passes away, disagreement may arise between family members and/or beneficiaries as to the terms or validity of the decedent’s Last Will and Testament. When this happens, a type of probate litigation called a “will contest” might result. Our attorneys at Bodycombe & Associates represent executors, heirs and beneficiaries in Ohio probate courts, either defending a will for an executor or representing heirs and/or beneficiaries who are challenging the validity of a will.The validity of a will can be contested for many reasons, the most common including:
- Disinherited or Omitted Individual – when an heir (a person who would inherit if there was no will) was not named in a will, but feels s/he should have been.
- Receipt of “Unequal” Share – when an heir (would inherit if no will) or a beneficiary (named to inherit under the terms of a will) receives a lesser share than s/he was entitled to.
- Invalidity of Will due to Improper Execution – when a will was not executed with the proper formalities required by law, including improper signing of the will by the testator (the person making the will), insufficient number of witnesses to testator’s signature, etc.
- Invalidity of Will due to Lack of Testamentary Capacity – when the testator (now the decedent, i.e. the person who passed away) was not competent at the time of the execution of the will due to mental illness, dementia, Alzheimer’s, etc.
- Invalidity of Will due to Undue Influence – when a testator leaves property to someone s/he would not otherwise have left property to as a result of that person’s improper influence over the testator.
- Invalidity of Will due to Revocation – when a new will has been created to revoke a prior will, and both have been submitted to the court for probate.
Our attorneys at Bodycombe & Associates assist in resolving trust issues, in coordination with Ohio probate court intervention when necessary, representing beneficiaries, heirs and trustees in Ohio as well as out-of-state trustees or beneficiaries of trusts administered in Ohio.
A trust is governed by its corresponding Trust Agreement, and must conform to the Ohio Trust Code. The Ohio Trust Code has set forth minimum standards for the administration of trusts, and enables courts to apply rules of law consistently to interpret trust terms and resolve administration issues. The Code also allows heirs and beneficiaries of trusts to access important information from the trustee. This allows beneficiaries to detect improprieties in the trust administration or trust distribution. If the trustee and beneficiaries are unable to resolve such improprieties amongst themselves, trust litigation in the probate courts may become necessary.
Common issues arising in revocable and irrevocable trusts include:
- Mismanagement/Improper Use of Trust Assets – in a manner that has decreased the value of the trust.
- Incompetent/Improper Trust Management – when a beneficiary seeks to remove the trustee due to the trustee’s poor health, dementia, alcohol or substance abuse, incarceration or past history of financial misconduct.
- Improper/Inadequate Accounting – insufficient disclosure of financial activity occurring within the trust.
- Improper Distributions – made against the intent of the trust document.
- Failure to Provide Required Documentation to Beneficiaries – as required by the Ohio Trust Code.
- Issues Relating to Interpretation of Trust Language – when a trust beneficiary seeks probate court intervention to interpret and/or reform terms of the trust document.
Our attorneys at Bodycombe & Associates represent family members, heirs and beneficiaries in central Ohio in fiduciary misconduct cases, as well as executors, administrators, trustees, guardians and attorneys-in-fact (appointed pursuant to a Power of Attorney) in fiduciary defense cases. Our first step is to evaluate the legal issues of your claim and determine whether a case exists. If we believe you have a case, we will then advise you as to its strengths and weaknesses and its likelihood of succeeding in probate or civil court.
Most problems relating to probate and non-probate estates are discovered soon after death, while an estate is being probated or administered and assets are being distributed. Problems often result from math errors or a simple lack of understanding of the duties and responsibilities of an executor or other fiduciary. On occasion though, fiduciary misconduct results from intentional mishandling or misuse of estate assets.
Examples of fiduciary misconduct include:
- Undue influence
- Mismanagement of estate, trust, guardianship funds
- Improper creditor payment
- Improper distribution of assets
- Unequal or unfair treatment of beneficiaries
If you suspect that the administration of a will, trust or guardianship has fallen prey to mismanagement, fiduciary misconduct, or any other improper action, our attorneys at Bodycombe & Associates can help you identify all courses of legal action available to you. Call (614) 777-4600 to set up an appointment for your free ½ hour consultation today.