Protecting Your Inheritance: Understanding Probate Litigation
Grieving the death of a loved one is difficult enough because navigating the probate process can be overwhelming. Probate is an important process that is designed to ensure the deceased person’s wishes are honored and fulfilled. As a potential beneficiary, it is a way to help protect your expected inheritance. Although no one wants to deal with probate litigation, being prepared is the best way to guarantee that a Last Will and Testament is executed correctly.
What is Probate?
Probate is a court process that ensures the proper distribution of assets after someone has passed away. If there is a properly executed will, then a person is said to have died “testate.” If a person dies testate, they likely will have nominated an executor who will be appointed by the probate court. Generally speaking, the executor is responsible for inventorying the assets, paying the debts of the estate, and distributing the remaining property according to what is directed in the will. The probate process usually takes several months (sometimes longer) to complete, depending on a variety of factors.
If a person dies without a will, this person is said to have died intestate. Certain individuals can apply to be appointed as the estate administrator, and administer the estate in accordance with the laws of intestacy. This is a set of laws that governs how a deceased person’s property is to be distributed — usually to the deceased person’s spouse, children, and potentially other relatives – after estate debts and administration costs are paid.
Probate ensures that all asset transfers have been done correctly and legally, and will affirm that all assets get to the right beneficiaries.
Is Probate Always Necessary?
Probate is only necessary if the deceased person owns property at the time of their death. It is a way to transfer ownership of those assets to designated survivors. For example, if the deceased person’s assets include real estate (such as a home, land, or a commercial building), probate may be necessary if the real estate did not pass through some sort of survivorship clause. However, in some cases probate may not be necessary, such as when jointly owned property contains survivorship language in a deed or, title or transfer on death designation. In this instance, the property will pass to the other owner or designated beneficiary without need for probate. Other examples of this would include assets with a named beneficiary, such as life insurance, a bank account, and most investment accounts.
Likewise, if property has been transferred to a valid trust document, the trust terms will dictate how that property is administered, without going through the probate process.
In most cases, the need for probate is determined by the ownership, type and value of assets that are owned by the deceased. Having an attorney to help review these things is absolutely essential.
Understanding the Probate Process
Probate almost always involves a variety of the same steps. If there is a Will, this needs to be filed in court along with the death certificate and some other basic information about the estate and the estate beneficiaries. At the same time the executor will be appointed.
If there is no Will, someone (or multiple people) can file an application to be appointed along with the death certificate and the same basic information about known estate property and identifiable statutory beneficiaries. These steps are roughly as follows:
- File an application to open an estate along with the Last Will (if there is one) and the death certificate. This application is filed in the Probate Court in the county where the deceased resided at the time of his/her death.
- The application is required to contain certain information about estate beneficiaries and next of kin, as well as known property of the deceased.
- Notification is required to be sent to the estate beneficiaries. The notification is required to contain a copy of the Will (if there is one) and certain basic information about the estate.
- Under Ohio law, if a Will Contest is to be filed, it must be filed no later than ninety (90) after the certification to the Probate Court is filed indicating that all persons entitled to have received the required notification. This is a short amount of time to review the Will and decide whether to hire an attorney to challenge the Will, find an attorney to do so, and get the challenge filed in Court. So it is imperative that if a challenge is contemplated, that you begin this process immediately.
- Inventory the assets. Under Ohio law, the executor has three months from the date of appointment to gather and document all the assets and their values, and submit that information to the court in the form of an Estate Inventory. Oftentimes this process cannot be performed within three months, so it is necessary in those instances to seek an extension of time from the Probate Court.
- The executor will also have to identify any outstanding debts, bills, or taxes. Generally speaking, estate creditors have only 6 months from the date of death to make a claim against an estate. Any claims not properly made within that timeframe do not need to be paid from estate assets.
- Pay debts and estate claims. After the inventory is approved and after the claims bar deadline, the Executor or Administrator is required to pay all accepted debts, to the extent there are funds in the estate to do so. All debts need to be paid before any assets can be distributed.
- Distribute assets. Once debts are paid, the court will give permission to distribute any remaining assets to the beneficiaries.
- Close the estate. Once all assets are distributed and debts are paid, the executor is required to file a Final Account (or comparable filing). Once this is approved, the Executor or Administrator is relieved of further obligations, the estate can then be closed, which ends the probate process.
Common Probate Disputes and Grounds for Probate Litigation
In an ideal world, probate would move quickly and smoothly with no conflict. However, this often isn’t the case. The prospect of an inheritance and the interpretation of the deceased’s wishes can bring out the worst in people who are already grieving. If a potential beneficiary doesn’t receive what they expect, claims of undue influence and/or incompetency can be often alleged as a basis to bring a Will Contest action. However, there are strict time restrictions as to when this must be filed. Likewise, there are high burdens of proof (clear and convincing evidence) that must be met in order to prevail in such instances.
In these cases, a family member may claim that the deceased person was manipulated into changing their will while they were still alive. In order to prevail, however, the person challenging the Will must show that the deceased person was not only susceptible to manipulation, but that the deceased person was actually manipulated (or a victim of duress or overreaching) on the day the Will was executed. Again, this must be proven by clear and convincing evidence.
Similarly, a family member may claim that the deceased person was not considered competent to make a Will on the day it was executed (i.e., that the person lacked “testamentary capacity”). In this situation, the court is required to review the evidence presented and determine whether by clear and convincing evidence, the person was competent to make a Will. In this instance, a person only needs to know two things: (1) who his/her beneficiaries are; and (2) generally what property he/she owns. The person can still make a valid Will even though he or she has been diagnosed with dementia. So long as he/she knows those two things on the day he/she made the Will, then it would be valid.
If probate litigation is necessary, it is a complicated process with an array of rules and standards. Because of that, you need an experienced attorney to guide you through the process.
Protecting Your Inheritance
If you want to ensure that your inheritance is protected, there are things you can do to safeguard yourself from disputes. Clear and comprehensive estate planning is always the first step. No one wants to think about what will happen after their death, but to ensure that your beneficiaries can get through the process with a minimal amount of stress, estate planning by a reputable estate planning attorney is a must. Do it sooner rather than later, and once made, avoid constant updates. The Wills that get set aside tend to be the ones made shortly before the deceased person passes away; they also tend to be the ones drafted by an attorney chosen by the beneficiary, rather than the deceased person’s long-time attorney.
If probate litigation is unavoidable, the beneficiaries impacted should make sure to hire an attorney experienced in probate litigation. And because time frames are short, this decision should be made as soon as possible.
How Do I Find the Right Attorney for Probate Litigation?
When you need an attorney for probate litigation, look for someone who has experience in the situation you are facing. They will know how to move forward with a contested will, property disputes, or other issues that may arise during the probate process. Look for an attorney who understands your situation and has a strong plan to move forward.
If you want to protect your inheritance during the probate process and are facing challenges, you need legal help. The process is complicated and making errors can be costly. When you need an experienced attorney, contact Arthur Law Firm (419) 782-9881 for a consultation. We can help you through the probate litigation process and protect your inheritance.