Probate Stars Find a Probate Lawyer in all 50 States Fri, 24 Jan 2020 21:31:08 +0000 en-US hourly 1 Standing To Challenge A Trust: The California Supreme Court Decides Fri, 24 Jan 2020 21:30:16 +0000 The California Supreme Court, in the January 23, 2020 opinion of Barefoot v. Jennings, held that the California Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud.  This decision reversed the California Court of Appeals decision that a prior beneficiary lacked standing because she was not a beneficiary or trustee under any of the trust amendments that were being challenged.

The Facts Of The California Trust Challenge

Joan Lee Maynord and her deceased husband established the Maynord Family Trust (“Trust”) in 1986.  Maynord served as sole trustee after her husband’s death in 1993.  Plaintiff Joan Barefoot is one of Maynord’s daughters.  Barefoot was a beneficiary and successor trustee under the Trust.  Two of Maynord’s other daughters Jana and Shana, the defendants, were also beneficiaries.

From 2013 through 2016, Maynord executed a series of eight amendments to and restatements of the Trust, culminating in the 24th amendment.  In the eight amendments and restatements, as set out in the 16th amendment, Barefoot’s share of the Trust was eliminated.  Barefoot was expressly disinherited and removed as a successor trustee.  Shana received a large share of the Trust and was named successor trustee.

Maynord died in August 2013.  Barefoot filed a petition in probate court alleging the eight amendments were invalid on the grounds of:

  1. Incompetence;
  2. Undue influence; and,
  3. Fraud.

As to Barefoot’s standing to challenge the amendments, Barefoot’s petition alleged standing as:

a person interested in both the devolution of [Maynord’s] estate and the proper administration of the Trust because [plaintiff] is [Maynord’s] daughter and both the trustee and a beneficiary of the Trust before the purported amendments. She will benefit by a judicial determination that the purported amendments are invalid, thereby causing the Trust property to be distributed according to the terms of the Trust that existed before the invalid purported amendments. Therefore, [plaintiff] has standing to bring this petition.

Defendants (the sisters) moved to dismiss, arguing that Barefoot lacked standing because she was neither a beneficiary nor a trustee under the Trust.  Barefoot argued she had standing because she was a beneficiary before the amendments.  The appellate court dismissed Barefoot’s challenge.

The California Supreme Court granted Barefoot’s petition for review on the narrow issue of standing.

Standing of a Prior Beneficiary to Challenge A Trust In Probate Court

The question addressed by the California Supreme Court was whether Barefoot had standing to assert the invalidity of the Trust amendments that left her without an interest in her mother’s trust estate.  The California Supreme Court looked to the probate code and its broad purpose to answer the question in the affirmative.

The appellate court relied on section 17200(a) to deny Barefoot standing.  This section provides that:

Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust.

The appellate court used this to conclude that Barefoot did not have standing to challenge the amendments, and that the reference to “a trustee or beneficiary” only includes current trustees and beneficiaries, and means that even wrongly disinherited beneficiaries are prohibited from making the petition.

A Prior Beneficiary Has a Present or Future Interest In The Trust

The California Supreme Court focused on whether Barefoot had an interest in the Trust, stating:

The applicable Probate Code provisions support plaintiff’s standing to challenge the merits of the Trust amendments on the grounds of incompetence, undue influence, or fraud. Section 17200, subdivision (a), authorizes a beneficiary to petition the court concerning the trust’s affairs “or to determine [its] existence.” Section 17200, subdivision (b)(3) contemplates the court’s determination of “the validity of a trust provision.” Plainly, the term “trust provision” incorporates any amendments to a trust. Section 24, subdivision (c) defines a “beneficiary” for trust purposes, as “a person who has any present or future interest, vested or contingent.” Assuming plaintiff’s allegations are true, she has a present or future interest, making her a beneficiary permitted to petition the probate court under section 17200.

The broad reading of standing to challenge a trust by the California Supreme Court recognizes the probate court’s inherent power to decide all issues necessary to carry out the court’s powers to supervise trust administration.

In addition, the broad reading of standing to challenge a trust in probate court just makes sense.  A prior beneficiary can only realize their interest under a prior trust document by challenging the subsequent amendments.  The California Supreme Court therefore concluded that:


claims that trust provisions or amendments are the product of incompetence, undue influence, or fraud, as is alleged here, should be decided by the probate court, if the invalidity of those provisions or amendments would render the challenger a beneficiary of the trust….To hold other than we do today would be to insulate those persons who improperly manipulate a trust settlor to benefit themselves against a probate petition. Today’s narrow holding in fact provides an orderly and expeditious mechanism for limited challenges like plaintiff’s to be litigated early in the probate process, in probate court, and to ensure that the settlor’s intent is honored.

Critical to the California Supreme Court’s opinion was that the plaintiff has an interest – here, standing as a prior beneficiary.  The holding does not bestow standing to challenge a trust in California upon individuals with no interest to pursue, and should not be read to broadly permit trust challenges to anyone who feels aggrieved.


Suspicion of Undue Influence Not Enough In Texas Will Contest Fri, 24 Jan 2020 14:42:52 +0000 Bare suspicion of undue influence is not enough to survive summary judgment in a Texas will contest.  A romantic relationship does not automatically create a confidential or fiduciary relationship.  Bare testimony that a decedent made a new will is insufficient to raise a fact issue of revocation.  These are the lessons from the January 23, 2020 opinion in Estate of Grogan from the Texas Court of Appeals, Sixth District.

The Facts of This Texas Will Contest

Henry Ezekiel “Zeke” Grogan died at age 83 in 2018.  Zeke had no lineal descendants and no spouse.  Zeke did have a lifetime companion, Linda Carpenter.  Zeke and Linda lived together for decades after working together in a dental practice.

Zeke’s 2010 lawyer-drafted will was admitted to probate.  The 2010 will basically left everything to Linda, and nothing to Zeke’s brothers, William and George.  William and George each separately contested the 2010 Will.  Summary judgment was granted in Linda’s favor.

William appealed the grant of summary judgment in Linda’s favor finding that there was no evidence that the 2010 will was the result of undue influence exerted by Linda, no evidence of a will executed by Zeke after the 2010 will, and that the 2010 will was executed without undue influence and was not subsequently revoked.

The Summary Judgment Evidence

William put forward the following evidence:

  • Zeke’s relationship with his brothers was strained and included a fight in the dentistry office that broke up their professional and personal relationships in 1979. George never spoke to William again.
  • George had no connection with Zeke for a long time.
  • William did not have close contact with either brother.
  • Zeke told William to stay out of the business.
  • William didn’t know where Zeke lived.
  • William met Linda only once.
  • William didn’t know anything about Zeke and Linda’s relationship.
  • William knew nothing of the 2010 will’s execution.
  • William didn’t remember if he knew about any will before Zeke’s death.

Notably, William’s evidence revealed no personal knowledge about Linda and Zeke, and no personal knowledge of the circumstances surrounding the preparation of the 2010 will.  Instead, William established that William had a strained relationship with Zeke and that his Texas will contest was based on nothing but unsupported suspicion of undue influence.

In contrast, Linda presented the following evidence:

  • Linda and Zeke had close relationship for 30 years.
  • Linda and Zeke lived together, were lifetime companions, and Zeke loved her children.
  • In 1995, without Linda’s knowledge, Zeke executed a holographic will leaving William and George $1.00 and everything else to Linda. Linda’s son Ryan was the sole contingent beneficiary if Linda predeceased Zeke.
  • Zeke told Linda that he was going to have a lawyer draw up a will in 2010.
  • Zeke asked Linda to copy notes that he had written for the attorney, so it would be in better handwriting, and Linda did so.  The notes said that Linda would be sole beneficiary, Ryan would be the contingent beneficiary, and that Zeke wanted to disinherit  his brothers and other relatives.
  • Zeke was in good health in 2010.

The drafting attorney, Branch, presented an affidavit which attested that:

  • Branch met with Zeke alone.
  • Zeke brought a copy of the 1995 will.
  • Zeke said he wanted to leave everything to Linda, make Ryan the contingent beneficiary, and disinherit his brothers. Branch’s Memo to File said the same thing.
  • Branch found Zeke to be decisive and strong willed. He knew exactly what he wanted.
  • Branch prepared the 2010 will and other estate planning documents.
  • Zeke returned to office alone to sign documents.
  • Linda was not present.
  • Zeke had a sound mind, testamentary capacity, understood who his heirs at law were and who he wanted to be his beneficiaries.

A neighbor also testified that:

  • Zeke told him that Linda was pressuring him to make the will.
  • Zeke called Linda a witch.
  • Zeke did a new will in 2016 that gave Perry several plots of land, and gave Linda the house and five acres. Perry never saw the 2016 will, but claimed the will was in the office Linda cleaned the day after Zeke died.
  • Zeke said that Linda had found some paperwork regarding the will and that it had been changed in 2016.

Undue Influence In Texas Will Contests

To show undue influence in a Texas will contest, a will contestant must prove:

  1. The existence and exertion of an influence;
  2. That subverted or overpowered the mind of the testator at the time of execution of the instrument;
  3. So that the testator executed an instrument he or she would not otherwise have executed but for such influence.

Mere suspicion of undue influence is not enough in a Texas will contest.

Does a Romantic Relationship Equal a Fiduciary Relationship in Texas?

No, evidence of a romantic relationship does not constitute evidence of a fiduciary relationship under Texas law.  A confidential relationship is determined from the actualities of the relationship between the persons involved.  Fiduciary relationships in Texas can be formal or informal.  A formal confidential relationship is one that arises as a matter of law, such as between an attorney and a client.  An informal or confidential fiduciary relationship arises from a moral, social, domestic, or merely personal relationship where one persons trusts in and relies on another.

William argued that Linda unduly influenced Zeke because she was in a confidential or fiduciary relationship with him.

William says he met his burden of showing a fiduciary or confidential relationship by showing that Linda and Zeke were romantically involved.  The court considered that Zeke relied on Linda , trusted Linda, and loved Linda, but also that Zeke was in good mental health until his death. The Court stated:

Sister courts have found that “a will contestant may raise a presumption of undue influence by introducing evidence of a fiduciary relationship between the testator and the will proponent.  This court hasn’t applied this presumption in a will contest, but has held that the fiduciary has a burden to demonstrate the fairness of a transaction.  Once evidence contradicting the presumption has been offered, the presumption is extinguished, and the case proceeds has if no presumption ever existed.

Therefore, even if William had raised the presumption, the undisputed evidence showing that Zeke was strong-willed and of sound mind extinguished it.

Mere Suspicion of Undue Influence In Texas Is Not Enough To Survive Summary Judgment

In analyzing the existence of undue influence, the court should consider:

the relationship existing between the testator and the parties, the opportunities for an exertion or deception, the words or acts of the parties, the mental or physical incapacity to resist or susceptibility to influence, the circumstances surrounding the drafting and execution of the will, the existence of a fraudulent motive, and any domination or habitual control of the testator by another.

Here, Linda had some influence over Zeke, but there was no evidence suggesting that the 2010 will contained a disposition that was against Zeke’s wishes when he executed it.  None of the witnesses had evidence or personal knowledge regarding the specific circumstances surrounding the execution of Zeke’s will.  The mere suspicion of undue influence in William’s Texas will challenge was not enough to overcome the lack of personal knowledge.

Branch’s testimony was undisputed that Zeke knew what he was doing.  In addition, Zeke had made a 1995 will with basically the same distribution pattern.  The court summarized by stating:

At best, William’s arguments and evidence produce merely a conjured suspicion of undue influence.  A “will ‘executed under the formalities required by law by one mentally capable of executing it should not be set aside on a bare suspicion of wrongdoing.

Therefore, just because you have a suspicion of undue influence occurring does not, if you have no personal knowledge and no evidence to support your claim, create an issue of fact for summary judgment.  There must be a scintilla of evidence to overcome summary judgment in a Texas will contest.

Bare Testimony That Decedent Made A New Will Does Not Raise A Fact Issue of Revocation

Because the 2010 will was not destroyed, William had to show it was revoked by a subsequent testamentary document executed with like formalities.  Although the  revoking document need not be produced, there must be evidence that execution meeting such requirements occurred, such as testimony of disinterested witnesses testifying that a new will was executed.

Here there was no such evidence.

However, bare testimony that a decedent made a new will is insufficient to raise a fact issue of revocation where there was no evidence that anyone saw or witnessed the new will.  This is because such evidence that the decedent may have executed a new will is mere suspicion requiring the fact-finder “to stack inference on inference” and amounts to no evidence that a later will was executed with the formalities required by the Texas Estates Code.

Partitions and Proof of Marriage in North Carolina Thu, 23 Jan 2020 20:51:22 +0000 In a January 2020 opinion from the North Carolina Court of Appeals, Lawrence v. Lawrence, the court addressed reimbursement in partition actions and proof of marriage.  In this unfortunate fact pattern, a son, Charles, challenged his mom’s right to reimbursement of funds paid toward a jointly owned property, and even went so far as to challenge the validity of his mom’s marriage to his deceased dad.

The Facts Of This Partition and Reimbursement Case

Petitioner, Louise, and Charles Lawrence (“Decedent”) were married in December 2000.  They had three children – Lawanna, Kalonji, and Respondent, Charles.

Decedent died intestate in 2006.  The death certificate listed Decedent as married, and identified Louise as Decedent’s surviving spouse.  Decedent owned real property.  Lawanna and Kalonji deeded their interests to the property to Louise in 2008.  Charles and Louise became the owners of the Property.

Louise sought partition of the property in August of 2018.

After some procedural mishaps, Louise amended her petition for partition and sought partition by sale and reimbursement of expenses from Charles for her paying the ad valorem property taxes and making mortgage payments.  Both parties moved for summary judgment on the issues of ownership interests and reimbursement.

Louise was granted summary judgment.  Charles appealed on three grounds.  First, Louise’s action was barred by the 3-year statute of limitations.  Second, summary judgment was inappropriate because there were issues of material fact concerning whether Louise was actually married to Decedent.  Third, Louise should be barred from recovering any reimbursement in the partition action under the doctrine of laches.

What is The Statute Of Limitations Applicable to Reimbursements Between Co-Tenants?

Two statutes of limitations were at issue in this case.

Charles argued that a three-year statute of limitations should apply.  NC Gen Sat 1-52(1) provides a three year statute of limitations to an action upon any “obligation or liability arising out of a contract, express or implied.”

Louise argued, and the trial court agreed, that the 10-year statute of limitations in NC Gen. Stat. 1-56 applied to her reimbursement claims in the partition action, which provides a ten-year statute of limitations to any action “not otherwise limited” by our general statutes.

The court of appeals determined that the reimbursements requested by Louise sounded in equity, not contract.  Partition actions are equitable actions, and permit the court to adjust the equities between the parties, which includes determining reimbursement and contribution claims.  Therefore, the ten-year statute of limitations applied, not the three year statute of limitations applicable to contract claims.

How Do you Establish A Valid Marriage In North Carolina?

Charles also challenged the existence of a marriage between Louise and Decedent at the time of Decedent’s death, to create an issue of the ownership of the property.

The court summarized the presumptions and burdens of proof to establish marriage:

There is no presumption that persons are married. A person claiming property of a deceased person by reason of marriage to deceased has the burden of proof of the marriage, and the personal representative, lawful heirs or devisees of deceased do not have the burden of proving non-marriage.” Overton v. Overton, 260 N.C. 139, 144, 132 S.E.2d 349, 353 (1963) (citations omitted).

If a ceremonial marriage is in fact established by evidence or admission it is presumed to be regular and valid, and the burden of showing that it was an invalid marriage rests on the party asserting its invalidity. It is presumed that a marriage entered into in another State is valid under the laws of that State in the absence of contrary evidence, and the party attacking the validity of a foreign marriage has the burden of proof.

Louise and Decedent had married in New York.  Louise presented evidence of her New York license and certificate of marriage, the death certificate listing her as “wife,” and various pleadings identifying her as wife.

In response, Charles came forward with an affidavit that said he was informed by his mother and father that they were divorced, but offered no documentation to support that assertion.  The Court summarized:

Petitioner has established by competent evidence the validity of her marriage to Lawrence and shifted the burden to Respondent to show invalidity of the marriage at the time of Lawrence’s death.  Respondent has failed to carry that burden.  His argument is overruled.

Laches Is An Affirmative Defense

Finally, Charles attempted to argue that Louise’s claims for reimbursement were barred by laches.  Laches is “the negligent omission for an unreasonable time to assert a right enforceable in equity.”  Laches is an affirmative defense and must be raised in the responsive pleading or it is generally waived.  Here, Charles did not raise laches in his responsive pleading, and has waived the defense.


Arkansas Supreme Court Allows Estate Creditor to Directly Pursue Alleged Fraudulent Transferee Thu, 23 Jan 2020 17:50:46 +0000 A fraudulent transfer is a transfer of assets to another for the purpose of defeating the claim of a creditor.  In the recent case of Heritage Props. v. Walt & Lee Keenihan Foundation, 2019 Ark. 371, 2019 Ark. LEXIS 362 (Ark. 2019), the Arkansas Supreme Court granted an Arkansas estate creditor of a deceased person standing to directly pursue the alleged transferee of a fraudulent transfer – in this case a pay-on-death account that named the transferee as the recipient of the account upon the death of the Decedent.

The Decedent created a brokerage account at Ameriprise with $500,000.  She designated the Walt & Lee Keenihan Foundation as the transfer-on-death recipient of the account at her death.  At her death, about 18 months after the account was opened, the account had grown to approximately $1.1 million. A creditor, Heritage, filed claims against the Decedent’s estate totaling approximately $850,000.  The Decedent’s probate estate was insolvent, making the $1.1 million allegedly fraudulently transferred from the Ameriprise account to the Foundation an enticing target for Heritage.

Heritage filed its action against the Foundation in an Arkansas circuit court, not in probate court.  The circuit court dismissed the Arkansas estate creditor’s claim based on jurisdiction, standing, and the lack of sufficient evidence to establish its claim.

Arkansas Circuit Courts Have Jurisdiction Over All Matters Not Otherwise Assigned Pursuant to Constitution

The Arkansas Supreme Court rejected the lack of jurisdiction determination by the circuit court, explaining that circuit courts are courts of general jurisdiction as a result of an amendment to the Arkansas Constitution (citations omitted):

As a consequence of Amendment 80, courts that were formerly chancery and circuit courts are now referred to as circuit courts. Because Amendment 80 states that circuit courts assume the jurisdiction of chancery courts, circuit courts simply have added to their already existing jurisdiction as a court of law the equitable jurisdiction which chancery courts held prior to adoption of the Amendment. In other words, no new or expanded jurisdiction beyond that formerly existing in the chancery and circuit courts was created through Amendment 80. Rather, circuit court jurisdiction now includes all matters previously cognizable by circuit, chancery, probate, and juvenile court.

Transfer on Death Accounts Do Not Enter the Probate Estate

In further clarifying that the circuit court has jurisdiction over Heritage’s claim, the Arkansas Supreme Court explained the nature of transfer on death accounts (citations omitted):

A TOD resulting from a registration in beneficiary form “is effective by reason of the contract regarding the registration between the owner and the registering entity and this chapter and is not testamentary.” Ark. Code Ann. § 28-14-109(a). Pursuant to section 28-14-107, TOD accounts are payable to the beneficiary or beneficiaries upon the death of the owner; they do not become assets of the owner’s estate unless no designated beneficiary survives the death of the owner.

In the present case, the Foundation, as the beneficiary of the TOD account, received the money on transfer. Stated differently, the transfer did not become an asset of the Estate and passed directly from the TOD account to the Foundation. Accordingly, we disagree with the circuit court’s finding regarding the exclusivity of the probate court’s jurisdiction. Pursuant to Amendment 80 and the fact that the money transferred from the TOD account did not become part of the Estate, the circuit court clearly had jurisdiction in the present case.

An Estate Creditor Has Standing To Pursue a Fraudulent Transferee

Normally, only the probate estate would have standing to pursue claims against third parties.  The Arkansas Supreme Court, however, held that an Arkansas estate creditor does have standing to directly pursue a fraudulent transferee for return of a fraudulent transfer:

We acknowledge that the procedures forth in Arkansas Code Annotated sections 28-49-109 and 28-48-103 allow for the personal representative or a special administrator to pursue claims. However, Arkansas Code Annotated section 28-14-109, which is also contained within the probate code, governs nontestamentary transfers on death:

(a) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this chapter and is not testamentary.

(b) This chapter does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.

Ark. Code Ann. § 28-14-109

Thus, with regard to a TOD, our probate code makes clear that it does not limit the right of creditors against beneficiaries and other transferees. In fact, the statute plainly allows creditors to pursue their claims against transferees under other laws of this state. Clearly, the Act is encompassed within the meaning of “other laws of this state.” In sum, while there are procedures within the probate code that would allow for the challenge of an alleged fraudulent conveyance, Arkansas law provides that a creditor may also pursue its claim under the Act.

It makes sense that an Arkansas estate creditor have standing to pursue a claim to bring fraudulently transferred assets back into the estate, because this would make funds available to pay the creditor.

Is Evidence of Actual Intent Necessary to Prove a Fraudulent Conveyance?

No, evidence of actual fraudulent intent is not required to establish a fraudulent transfer in Arkansas.  As explained by the Court:

As Heritage correctly points out, it is not necessary to prove actual intent under either section 4-59-204 or section 4-59-205. While section 4-59-204(a)(1) does require that the debtor intend to defraud his or her creditors, section 4-59-204(a)(2)(ii) does not require actual intent. Instead, the standard under that provision is whether the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the debtor intended to incur, or “believed or reasonably should have believed that he or she would incur debts beyond his or her ability to pay as they became due.” Ark. Code Ann. § 4-59-204(a)(2)(ii).

In other words, here, there are two ways to set aside the transfer: (1) demonstrate Leta’s intent; or (2) demonstrate that Leta made the transfer without receiving a reasonably equivalent value in exchange for the transfer, and Leta intended to incur, or believed or reasonably should have believed that she would incur, debts beyond her ability to pay as they became due. Pursuant to section 4-59-205(a), the creditor may prove that the “debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.”

Here, based on the record, the circuit court failed to consider Heritage’s argument pursuant to section 4-59-204(a)(2)(ii) or section 4-59-205(a). As stated above, these provisions do not require Heritage to demonstrate Leta’s actual intent. Heritage presented proof that the IRS had a claim for tax deficiencies dating back to 2005, that Leta had multiple creditors, and that her Estate was likely insolvent. The evidence, considered in the light most favorable to Heritage, raises a factual issue precluding summary judgment as to whether Leta reasonably should have believed that she would incur debts beyond her ability to pay. Given our discussion above and our standard of review, we hold that the circuit court erred in granting the Foundation’s motion for summary judgment. Therefore, we reverse the order of summary judgment for the Foundation and remand the case for trial.

4-59-204. Transfers fraudulent as to present and future creditors.

(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:

(1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or

(2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:

(i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or

(ii) intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.

(b) In determining actual intent under subdivision (a)(1) of this section, consideration may be given, among other factors, as to whether:

(1) the transfer or obligation was to an insider;

(2) the debtor retained possession or control of the property transferred after the transfer;

(3) the transfer or obligation was disclosed or concealed;

(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;

(5) the transfer was of substantially all the debtor’s assets;

(6) the debtor absconded;

(7) the debtor removed or concealed assets;

(8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;

(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;

(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and

(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.









Alabama Supreme Court Rejects Probate of Lost Will Wed, 22 Jan 2020 20:09:58 +0000 Beneficiaries of lost wills can attempt to probate a lost will if the requirements of state law are met.  In January of 2020, the Alabama Supreme Court amplified the rules for probating a lost will in Alabama.

In Taylor v. Hoehn, No. 1180375, 2020 Ala. LEXIS 10 (Jan. 17, 2020), the Decedent, Mr. Hoehn, was married to Margaret.  They had four daughters, one of which, Helene, attempted to probate a lost or missing will in Alabama probate court.  Helene attempted to probate an unsigned will, claiming that the original, signed will, was missing.

The drafting attorney, Attorney Moore, testified as follows:

  • He had prepared the unsigned copy of the will.
  • He did not remember the Decedent actually signing the will.
  • He did not remember any witnesses or a notary signing the will.
  • He normally keeps signed copies of wills he prepares for clients, but did not have a signed copy of the will in question.
  • Although another of the Decedent’s daughters, Roman, testified that she was present in the room when the will was executed, Attorney Moore testified that it was his practice for many years to exclude children from a will execution ceremony.

The daughter, Roman, testified as follows:

  • She was present when the will was signed, but did not testify that any witnesses also signed the will contemporaneously.
  • The signed will and the signed will of her mother, Margaret, were kept “on top of a file cabinet in an office the family shared for many years…[and] …when she remodeled the office, the wills were taken to her parents’ house and placed on a dining-room table that Margaret used as a desk.”
  • The unsigned copy of the will was identical to the will that she claimed her father signed.

What are the Requirements in Alabama to Probate a Lost or Missing Will?

Alabama case law sets forth the elements necessary to probate a lost or destroyed will in Alabama.  As explained by the Court, the necessary elements are (citations omitted):

  1. The existence of a will — an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.
  2. The loss or destruction of the instrument.
  3. The nonrevocation of the instrument by the testator.
  4. The contents of the will in substance and effect.

In rejecting the probate of the missing will, the Alabama Supreme Court explained as follows:

Roman testified that she was present at attorney Deven Moore’s office and that she saw Hoehn sign the will that Helene sought to have admitted to probate. Moore testified that the will he prepared was self-proving. However, Roman did not testify, or present any other evidence to establish, that Hoehn signed the will in the presence of two witnesses and a notary public, that two witnesses also signed the will, and that a notary public notarized those signatures. Further, Moore could not support Roman’s testimony because he did not recall the execution of the will and because he did not have an executed copy of the will in his office files. Finally, the circuit court found that Roman was not credible as to the issue whether Hoehn signed the will. Therefore, the circuit court could have reasonably concluded that Helene did not establish that Hoehn ever properly executed the purportedly lost will.

Can You Revoke a Lost Will?

Attorney Moore also testified that he had received a letter from the Decedent which stated “I have revoked my prior power of attorney, as well as any other writing I have made which purports to gift any real property, business interest, cash, or anything of value to either [Roman] or [Helene].”

The Court rejected the attempt to bootstrap a finding that the revocation letter established that the will had been signed and not revoked (citations omitted):

The Supreme Court discussed the presumed fact that a will has been revoked only when a signed copy exists.  The fact that the will left in the testator’s possession cannot be found after his death creates a presumption that the will was destroyed by the testator animo revocandi, or with intent to revoke. The presumption referred to is not an irrebuttable conclusion of law; it is a mere inference of fact. Our cases clearly hold that this presumption of revocation or inference of fact is rebuttable and the burden of rebutting the presumption is on the proponent of the will.

The Court relied on the revocation letter to amplify its decision to reject the probate of the allegedly lost will in Alabama.

Moreover, there was also evidence from which the circuit court could have reasonably concluded that, even if [the Decedent] had signed the will, that will had been revoked. Although Roman testified that the signed will had been kept in the family office and later on the dining-room table in [the Decedent’s] and Margaret’s house, that will could not be located after [the Decedent] died. Also, there was evidence indicating that [the Decedent] sent letters or notices to both Roman and Moore stating that he had revoked the power of attorney he had given to Roman and that he was revoking any other writings that had reflected an intent on his part to give her money or property. Therefore, the circuit court could have reasonably concluded that Helene did not rebut the presumption that, if [the Decedent] had signed the will, he later revoked it.


Do I Need An Expert In Inheritance Litigation? An Interview With A Clinical Neuropsychologist Wed, 22 Jan 2020 18:04:18 +0000 There comes a point in every inheritance litigation  when you have to decide whether or not to retain an expert.   Do you want to spend the money?  Do you really need an expert to win your case?  Can you just have the treating physician testify?  We recently interviewed a clinical neuropsychologist who has served as an expert witness in many inheritance disputes, Dr. Glenn Hammel.

Dr. Hammel has spoken at numerous seminars regarding how the conditions of aging impact brain functioning, vulnerability to elder abuse, and the ability to make decisions.  We discussed with him the role and importance of an expert in inheritance litigation, with particular emphasis on the role of an expert in the cases involving allegations of lack of capacity coupled with undue influence.  Read the highlights of our interview below.

Can you provide an overview of what happens in an aging person’s brain that can make them more susceptible to undue influence?

There are numerous neurobiological and social conditions that lead to someone becoming more dependent, and less self assured as one ages.

We have to proceed on the presumption that anything that diminishes a person’s self efficacy puts them in a position at the least of being frightened, and at worst, dependent on other individuals.  A lot of the natural aging process can place an elderly person in such a position.

Decline can happen functionally (someone is limited in their cognitive ability, more helpless, less able to function) and socially (when one struggles with their place in the world, how they fit in, etc.)

You typically hear about Alzheimer’s disease in the elderly.  But it is important to note that there are many types of dementia that are not called Alzheimer’s disease and that not all forms of dementia are the same.

For example, a vitamin B12 deficiency or a urinary tract infection can be accompanied by forms of cognitive diminishment.  Positively, these conditions can be reversed once properly treated.

Depression is also a lesser known cause.  With depression, an elderly person may show a greater amount of cognitive problems  that can mimic dementia.  This is called pseudo dementia, or geriatric depression.  This type of dementia can also be reversed, with anti-depressive medications, and with therapy.

All of these conditions lead to someone, particularly an elderly person, becoming more dependent on another person, and less self assured.   Even a relatively intact brain of an elderly person can become highly persuadable.  This is due to normative age-related cognitive decline.

Undue influence can occur even if there is no diagnosis of dementia, is that correct?

Yes, there are a number of situations where someone can be unduly influenced even if there is no dementia diagnosis present.  Just think Patty Hearst, for example (Hearst was kidnapped as a young woman by a group of armed radicals and then brainwashed into becoming a poster child for their revolution).  A person with diminished cognition is simply more vulnerable than a person without.

Undue influence is not just over-persuasion.  It is not merely a power differential. There is also a trust differential.  The victim puts trust into the undue influencer.  Conversely, the victimizer has no reason to place trust into the victim.  Ultimately, the victim’s trust is misplaced.

Further, a person with diminished cognition or dementia is not just suffering from loss of sense of self.  It is the dependency on another that is the key.  There is a dependency on others psychologically as well as physically.  Such circumstances lead a person to experience the world as they did in childhood.

What should parties and attorneys be looking for in medical records as clues for the susceptibility to undue influence?

There are many things to look for in medical records that could indicate the potential for undue influence.

We’ll start with the obvious – look for major neurocognitive disorder and/or dementia.  You also want to look for other disturbances in cognition, marked by disorientation, confusion, language disturbance or perceptual disturbance, like hallucinations.  Delirium is another cognitive indicator that could open the door for undue influence.

Look for subcategories of dementia,  such as Alzheimer’s disease,  frontotemporal lobar degeneration, Lewy Body Disease (which often accompanies Parkinsons), and traumatic brain injury.  All of these are all indicators of a non-intact brain and rendering a person more susceptible to undue influence.

You also need to look for medications that can cause problems.  An elderly person simply does not metabolize medications in the same way that a younger individual would.  Even a variety of over-the-counter drugs can cause a cognitive disturbance in an elderly person.

When you look in the medical records, you have to ask what reduces that person’s ability to involve him or her self in the world with strength and self-efficacy.  For example, someone with a hearing loss or a visual impairment maybe can’t drive or do bills.  That person could also be socially isolated because of a hearing loss.  Deafness, particularly geriatric deafness, can take us out of the world of interacting with other people.

Also, when going through the medical record, you have to see what degree anxiety is taking a role.  What medications are being used to treat any anxiety?  Many anti-anxiety medications can lead to fatigue, can reduce cognition, and reduce mental focus and concentration.

Finally, look at whether or not the individual believes they are going to die.  Do they believe their lifespan is markedly attenuated?  If a person is going through an existential crisis, any individual who offers soothing and makes them feel like they are not alone, can have a remarkable amount of influence.

Is a treating physician a more credible witness than an expert because they’ve actually seen the patient?

To analyze medical records and really explain how the information in the records can make someone susceptible to undue influence, you need an expert.  A treating physician is not necessarily an expert on undue influence.  You really need a neuropsychologist to link all of the information together.

The treating physician generally spends very limited time with the person.  A caretaker could have filled out the forms.  Doctors are far more adept at spotting physical abuse than financial abuse.

Again, a  lack of obvious evidence of a dementia in the medical records does not mean an inability to be unduly influenced.

What do you do if you get medical records that look bare bones?

Medical records can be bare.  Sometimes a person challenging a will sees that and thinks all is lost.  But it is not.  You hear a lot about the MMSE (mini mental status exam).  I have seen attorneys wave around a record that shows a patient performed strongly on the MMSE and therefore could not have been unduly influenced.

But a simple MMSE can miss a wide swath of conditions, unless the person is moderate to severely demented.  The MMSE is only a screening instrument.  It cannot be used to rule in or out a dementia.  It is simply not a diagnostic tool.  Very often a physician will have about 15 minutes with a patient, without the opportunity for any deep analysis.

In a post mortem analysis, I gather as much information about the decedent as I possibly can.  I might be limited to medical records.  Usually, I can supplement the medical records with other records.  I often will look at DMV records to see if they still drove.  I try to get their check registry, to see if they were still writing their own checks, and where their money was going.   I generally try to get a sense of who that person was, pre-mortem, as far as their basic life functioning.

Do you have any general advice about retaining an expert in inheritance litigation?

Generally, if you are challenging a will on the grounds of lack of capacity and undue influence, medical records are not enough at trial.  Unless the medical records are out of the park obvious that the testator could not have orchestrated the preparation and execution of a will by themselves, you really need to retain an expert in your inheritance litigation to tie the medical records in with the psychology of undue influence.  It’s the complete picture of the person, their life, their capabilities, and their fears that allows the undue influencer to take advantage of the situation.

Will contests are challenging.  You are very often testifying against a drafting attorney (and possibly another expert) that says that the testator was perfectly fine and free from undue influence.  But most attorneys are not engaging in a neuropsych assessment when a testator comes into their office.

You really need to assess what the records are showing you.  It is important to remember that neurocognitive disorders frequently affect short term memory  functions before long term memory functions.  Long term memory-related behaviors include our social repertoire.  So a person could be acting socially appropriate, but it is a total veneer and in fact, a cognitive disorder is lying just below the surface.

Therefore, someone who appears ok could actually be highly vulnerable to the powerful sway of undue influence.  Having the trained eye of a neuropsychologist assess the testator’s capacity and susceptibility to undue influence I believe is one of the key components to prevailing in inheritance litigation.

Dr. Hammel’s biography and contact information can be accessed here.



Creditor Claims In Florida Probate Wed, 22 Jan 2020 16:41:45 +0000 A creditor claim in Florida probate is a claim filed by a person or entity (a “creditor”) that the decedent owed money to at the time decedent died.  A creditor must file a timely statement of claim in the probate estate in order to pursue satisfaction of their creditor claim.

Unless creditors’ claims are barred, every personal representative is required to cause notice to creditors to be published and served.  Section 733.701, Fla. Stat.


What Is The Deadline To File A Creditor Claim in Florida Probate?

  • 30 days after the date of service of the notice to creditors on the creditor
  • 3 months after the first publication of the notice to creditors
  • 2 years from date of death for known or reasonably ascertainable creditors who did not receive notice to creditors

These deadlines can be broken down into deadlines applicable to known or reasonably ascertainable creditors and unknown creditors.

Creditor Claim Deadlines For Known or Reasonably Ascertainable Creditors – Up To Two Years

If you are a known or reasonably ascertainable creditor then you are entitled to direct notice of a Florida probate proceeding.  The Florida Supreme Court, in Jones v. Golden, resolved any confusion over when a creditor claim needs to be filed for a known or reasonably ascertainable creditor:

Creditors who are known or reasonably ascertainable need not rely on publication for notice of the pending administration of an estate. Section 733.2121(3)(a) requires a personal representative to “promptly serve a copy of the notice” on those creditors who are known or reasonably ascertainable after a diligent search. The limitations period applicable to known or reasonably ascertainable creditors does not begin to run until service is perfected. Once served with a copy of the notice, a known or reasonably ascertainable creditor must file any claim within the later of “3 months after the time of the first publication of the notice to creditors or . . . 30 days after the date of service on the creditor . . . .” § 733.702(1), Fla. Stat.

Under the plain language of section 733.702(1), where a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the applicable limitations period never begins to run and cannot bar that creditor’s claim. “[A]s to any creditor required to be served with a copy of the notice to creditors,” the [**15]  limitations period can only be triggered by “service on the creditor” of the required notice. § 733.702(1), Fla. Stat. A known or reasonably ascertainable creditor is absolved from the limitations of section 733.702(1) by virtue of the fact that the personal representative failed to serve the creditor with the required notice. The  [*248]  only instance in which a known or reasonably ascertainable creditor is required to file any claims before the expiration of the three-month window after publication of the notice is where the last day of the three-month window occurs more than thirty days after service of the required notice.

Accordingly, if a known or reasonably ascertainable creditor is not served with a copy of the notice, section 733.702(1) does not govern the timeliness of that creditor’s claims. Instead, the claims of such a creditor are only barred if not filed within the two-year period of repose set forth in section 733.710. Thus, the claim of a known or reasonably ascertainable creditor who was never served with a copy of the notice to creditors is timely if filed within two years of the decedent’s death. Further, because the limitations periods in section 733.702 are inapplicable under such circumstances, it is not necessary for the creditor to seek an extension of time [**16]  under section 733.702(3) since that section applies only to claims that are untimely under section 733.702.

Creditor Claim Deadline For Unknown Creditors – 3 Months After First Publication

If you are not a known or reasonably ascertainable creditor, then you get notice by publication in a local newspaper.

The limitations period applicable to unknown creditors, set forth in section 733.702(1), begins to run upon publication of the notice to creditors and ends three months after the date of the first publication.

You can find out more about the Jones v. Golden case here.


Surviving Spouses, Ex-Spouses, and Creditor Claims In Florida Probate

Creditor claims and divorce often intersect, and an ex-spouse and a surviving spouse may have to file a creditor claim to enforce their rights.

Ex-Spouses Must File a Creditor Claim To Pursue Marital Agreement Rights

A premarital or postnuptial agreement can be enforced after a prior spouse’s death, but the prior spouse must file a creditor claim to enforce this contract right.  See Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991).

A Spouse in The Middle Of A Divorce Does Not Have to File a Creditor Claim, But Probably Should

In Passamondi v. Passamondi, (2nd DCA 2014), Mr. and Mrs. Passamondi filed for divorce.  Mr. Passamondi requested that the divorce proceedings be bifurcated, because Mr. Passamondi was suffering from a terminal illness and presumably wanted a final judgment of divorce entered sooner rather than later, even if it meant other issues such as distribution of property would determined after entry of the judgment of divorce.

A final judgment of divorce was entered on May 24, 2006.  The final judgment “reserved jurisdiction over this cause and each of the parties to enter such further Orders, Judgments, and Decrees as may be necessary at any time in the future to resolve all equitable distribution issues and any other issues which have been pled.”

Mr. Passamondi died in July 2006.  The former wife filed a creditor claim in Mr. Passomondi’s Florida probate estate.  The basis for the former wife’s claim was an “undetermined marital interest in all of the real, personal and intangible property of decedent preceding his death as so determined in” the pending dissolution of marriage proceeding.

The former wife also filed a supplemental petition for relief in the dissolution of marriage proceeding against Mr. Passamondi’s estate and his three children.

Four years passed.  A final hearing was set in the dissolution proceeding for October 2011.  In the meantime, the probate proceedings were terminated in May 2011.

When the parties appeared for final hearing in the dissolution proceeding, the court declined to hear and determine the remaining issues, ruling that Mr. Passamondi’s death and opening of Mr. Passamondi’s estate vested the probate court with “exclusive jurisdiction to determine the proper manner of distribution of the Former Husband’s assets after payment of all creditors of the Estate of which the Former Wife was one…”  The trial court dismissed the former’s wife’s claims.

The Florida appellate court reversed the ruling of the trial court, stating:

If a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved.

Although filing a creditor claim was ultimately not necessary in this case, it is prudent to file a creditor claim to make sure your client’s rights are protected.

A Surviving Spouse With Community Property Rights Must File A Timely Claim

A surviving spouse who has community property rights must file a claim in the deceased spouse’s estate to enforce community property rights.  We have written about this requirement under Florida law here.


Child Support And Creditor Claims In Florida

A child support arrearage can be pursued with a creditor claim in Florida probate by the parent owed the support, or by an emancipated child if the parent is unable or unwilling to pursue.

In Davis v. Hengan, a father died owing child support arrearages.  The father died intestate, and was survived by his daughter, his daughter’s mother, and his current wife.  The daughter and current wife were appointed co-personal representatives of the father’s Florida estate.

The mother, as a creditor of the father’s estate, filed a statement of claim in the father’s Florida estate for child support arrearages.  An objection was made to the mother’s claim, and the mother filed an independent action against the co-personal representatives of the estate for the child support arrearages.

The daughter (a co-personal representative), also filed a statement of claim against the estate for child support arrearages.  The current wife (the other co-personal representative) objected to the daughter’s claim.  Like the mother, the daughter filed an independent action on her claim, and then moved to consolidate her independent action with her mother’s independent action.

The father’s current wife, as co-personal representative, moved to dismiss the daughter’s independent action.  The current wife argued that the daughter lacked standing to pursue child support arrearages because the right to pursue the arrearages vested solely in the daughter’s mother.  The Florida trial court granted the current wife’s motion to dismiss.  The daughter appealed.

In a short opinion, the Florida appellate court affirmed the dismissal of the daughter’s independent action, stating:

Parents have a legal duty to support their children.” Dep’t of Revenue v. Jackson, 846 So. 2d 486, 492 (Fla. 2003); see § 61.09, Fla. Stat. (2015). “An obligation to pay accrued support is not extinguished even when the child reaches majority, notwithstanding that the parent’s obligation to support normally ends when a child reaches eighteen.” Kranz, 661 So. 2d at 878 (citation omitted). We have held that a child has standing to enforce rights that ripen after the child reaches the age of majority. Brown v. Brown, 484 So. 2d 1282 (Fla. 4th DCA 1986). But we have never held, nor has any other court held, that the rights that accrue during the age of minority can be enforced by anyone other than the child’s legal representative.

The Florida appellate court noted that the opinion should not be read to prevent a child who has been emancipated from pursuing child support arrearages if the parent is unable or unwilling to pursue the arrearages.

Can A Creditor Claim Be Filed Before The Appointment Of A Personal Representative?

Yes, and it will relate back.

In the case of Richard v Richard, (3rd DCA 2016), the court was faced with the issue of a potentially late-filed creditor claim in the Florida probate.  The notice to creditors was published one day prior to the order appointing the two personal representatives.  The trial court held that the notice to creditors was not validly published, which had the effect of making the creditor claim not late (because the three month claim period, otherwise triggered by the publication of the notice to creditors, had not yet started to run).

In reversing, the appellate court relied on the “relation back” doctrine, as well as specific statutory authority to ratify acts taken prior to the appointment of a personal representative.

As explained by the court:

The roots of the “relation back” doctrine run deep in Florida law. In 1954, the Florida Supreme Court referred to it as an “ancient doctrine” when considering whether or not a trial court erred in dismissing a wrongful death claim brought by a father on behalf of his deceased son’s estate prior to his appointment as personal representative of the estate. Griffin v. Workman, 73 So. 2d 844, 846 (Fla. 1954). The Court further noted the doctrine, which provides that “whenever letters of administration or testamentary are granted they relate back to the intestate’s or testator’s death,” had “been accepted with virtual unanimity, since it was promulgated, in a long line of cases” throughout the country.

The court also looked to a Florida Statute, which provides as follows (Section 733.601):

The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.

In summarizing its holding, the court explained:

We hold that the relation back doctrine, codified in section 733.601, applies to the personal representative’s act of publishing the notice to the creditors, and that the order appointing personal representative relates back and validates the pre-appointment act of publication of the notice to creditors.

Creditor claim deadlines in Florida probate can be quick, and a trap for the unwary.  Figure out if you need to file a creditor claim, and file your claim as soon as possible.

Objections To Florida Creditor Claims

Just because a creditor claim has been filed does not mean that the claim is automatically deemed valid and paid.  Creditor claims can be objected to.

Who Can Object to a Florida Creditor claim?

The personal representative of the estate or other interested person may file an objection to a creditor claim.

An “interested person” is defined in section 731.201(23) as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  In the context of a creditor claim, this would include the beneficiaries and other creditors.

What is the deadline to file an objection to a creditor claim?

The deadline to file an objection to a creditor claim is the later of:

  • On or before the expiration of 4 months from the first publication of notice to creditors or;
  • Within 30 days from the timely filing or amendment of a claim.

What Happens If An Objection To A Creditor Claim is Filed?

Once an objection to a creditor is filed, the claimant (the person who filed the creditor claim) has two options.

File An Independent Action

If the claimant wants to pursue their creditor claim, the claimant must file an independent action.  Pursuant to section 733.705, a claimant has 30 days from the service of the objection to the claim to file the independent action.  The independent action is a separate lawsuit, and cannot be filed in the probate estate.

No Longer Pursue the Creditor Claim

The other option for the claimant is to let go of the creditor claim.  If 30 days passes without the filing of an independent action, then the creditor claim will not be paid, and will effectively be abandoned.


How to Probate A Will In Ohio Tue, 21 Jan 2020 19:37:45 +0000 To probate a will in Ohio, take the following steps:

Step 1: Find and File the Decedent’s Will

The first step to take to probate a will in Ohio is to find the original will. Once you have found the will, you file the will in the county were the decedent lived.  You can also search the online court records to see if a will has already been filed in the event that you cannot find the will.

Step 2: Order Decedent’s Death Certificate

Order the Decedent’s death certificate.  The Ohio probate court will not open an estate if they do not have proof that the decedent died.  Therefore, order the decedent’s death certificate.  You can do this by contacting the Ohio Department of Health, Vital Statistics.

Step 3: Petition for Probate

This step is generally where an attorney should get involved.  A petition for probate must be filed.  In the petition you seek to have the will admitted to probate, and to have an executor of the estate appointed.  Generally, the petition will have to include the decedent’s name, date of birth and death, residence, and the names and addresses of the beneficiaries.

Step 4: The Probate Is Opened and Letters of Authority Are Issued

After the necessary opening documents have been filed, the Court will generally, after hearing, issue “Letters of Authority” to the executor.  Letters of Authority make it possible for the executor to administer the estate.  The executor needs to marshall all of the decedent’s assets, and the Letters of Authority will grant the executor the necessary access to do so.

Step 5:  Administration, Creditors, and Inventory of the Estate

The executor will administer the estate by marshalling assets, identifying the beneficiaries, providing notice to creditors, dealing with creditor claims, and preparing an inventory of the estate assets.  Creditors have six months to make a claim under Ohio probate law.  The executor has three months from appointment to prepare and file an inventory of the estate’s assets.

Step 6: Petition to Close Probate and Distribute the Estate

After all of the creditors have been dealt with, the executor must petition to close the estate.  Often, the executor will seek and receive waivers from the beneficiaries of the estate so that the closeout process can be streamlined and move as swiftly as possible.  Upon approval, the estate can be distributed to the beneficiaries.

Do All Wills Have To Go Through Probate In Ohio?

No, not all wills have to go through probate in Ohio.

No Probate Assets

One reasons is because sometimes there are no assets that are a part of the probate estate.  See our Assets of the Deceased chart to learn what assets are and are not generally probate assets.  If a decedent had beneficiary designations on their bank accounts, or owned all of their assets jointly, then no probate might be necessary.

Summary Probate

Another reason is that some estates in Ohio do not require court supervision, and a formal probate is not necessary.  If the value of the estate is under $35,000 or the value of the probate estate is $100,000 or less and the entire estate goes to the surviving spouse than you can do a “summary probate” where you complete some forms and wait a certain amount of time before final distribution of the assets.

 How Much Does It Cost To Probate A Will In Ohio?

 The cost to probate a will in Ohio is generally a combination of filing fees, attorney’s fees, and executor’s fees.  Filing fees are usually around $100 to file for probate of a will in Ohio.

Attorneys fees and executor fees are usually the most expensive expense of the estate.  Attorney’s fees can be calculated based upon a percentage of the estate value, an hourly fee, or a flat fee.  Executor’s fees are set by Ohio statute and are:

  • 4% of the first $100,000 of probate assets
  • 3% of the next $300,000 of probate assets
  • 2% of the assets above $400,000
  • 1% fee (maybe) on non-probate assets

How Long Do You Have To Probate A Will In Ohio?

There is no deadline for when you have to probate a will in Ohio.  However, if you know of the existence of the will and you are a beneficiary, if you have the power to submit the will for probate you must do so within a year.  Section 2107.10 of the Ohio Revised Code prohibits the withholding of a will and states:

 (A) No property or right, testate or intestate, shall pass to a beneficiary named in a will who knows of the existence of the will for one year after the death of the testator and has the power to control it and, without reasonable cause, intentionally conceals or withholds it or neglects or refuses within that one year to cause it to be offered for or admitted to probate. The property devised or bequeathed to that beneficiary shall pass as if the beneficiary had predeceased the testator.


Title to Inherited Real Property In Maine Tue, 21 Jan 2020 15:45:18 +0000 The Maine Supreme Court, in Clark v. Clark, recently interpreted Maine’s Probate Code to determine title to inherited real property.  To reach the decision, the Court relied on a North Dakota Supreme Court decision, Estate of Hogen, interpreting the model provision from the Uniform Probate Code upon which the Maine Probate Code is modeled.

Who Receives Title To Inherited Real Property After Decedent’s Death?

In Clark, decedent Ruth Clark died testate (with a will).  Ruth had three children: Beth, Kevin, and Bruce.  Bruce died before Ruth.  Ruth’s heirs at law were Beth, Kevin, and Bruce’s children – Jason and Sean.

Ruth’s estate included two properties (the “Properties”).  Ruth’s will devised Ruth’s estate to Beth and Kevin equally share and share alike.  The will was admitted to informal probate.  Beth was appointed personal representative of the estate.

As personal representative, and with the agreement of Kevin, Beth executed deeds of distribution of the Properties to herself and Kevin as joint tenants on June 30, 2010.  Seven years later, Kevin died intestate, unmarried, and with no kids.  Kevin’s heirs at law were Beth (his sister), and Sean and Jason (his nephews).

Sean and Jason filed a complaint against Beth, alleging that they were each entitled to a 1/8th interest in the Properties as tenants in common with Beth (Beth would take ½ of Kevin’s 1/2 interest, and they would split the other ½ of Kevin’s 1/2).   Sean and Jason argued that  Beth and Kevin took title as tenants in common immediately upon Ruth’s death, and that  Beth had no authority as personal representative to unilaterally change the devise from a tenant in common to a joint tenancy.

Beth asserted that she had exclusive ownership as a result of Kevin’s death, since she, as personal representative of Ruth’s estate, had deeded the Properties to herself and Kevin as joint tenants.

Each side filed a motion for summary judgment.

Title to Real Property Upon Death Vests Subject To Administration

Maine’s probate code is modeled on the Uniform Probate Code (“UPC”), which has been adopted in several states, including North Dakota.  Section 3-101 of the Maine Probate Code states that:

Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will…, subject…to administration.

The North Dakota Supreme Court, interpreting the same language, placed import on the phrase “subject…to administration” and concluded that under the UPC, title to real property does not vest immediately on a decedent’s death.  Instead, just like the statute says, title to real property vests subject to administration.  The Maine Supreme Court relied on the plain language interpretation of the statute to determine the outcome of this case.

The Power of a Personal Representative Over Title

The Maine Supreme Court analyzed the Uniform Probate Code to reach its decision.  The UPC broadened the powers of a personal representative.

Section 3-7111 of Maine’s probate Code grants a personal representative:

the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing or order of court, except as limited by this section.

As a leading treatise on the UPC has explained:

Since the [personal representative] has a “power over the title” rather than “title[,”] no gap in title will result if the [personal representative] does not exercise his power during the administration. The title of the heir or devisee, however, is “subject to administration”; hence, it remains encumbered so long as the estate is in administration or is subject to further administration.

Therefore, a Maine personal representative’s power over title permits the personal representative to sell or convey the property.  If the personal representative does not exercise the power, then title remains with the heirs or devisees to whom the property devolved upon the death of the decedent, under section 3-101.

In this case, Sean and Jason argued that the UPC just codifies the common law rule that title to real property passes at the moment of decedent’s death.   The argument ignores the phrase “subject…to administration” in the statute.  As personal representative of Ruth’s estate, Beth owed a duty to the beneficiaries of Ruth’s properties under Ruth’s will – Beth and Kevin.  Neither Beth nor Kevin challenged the deeds of distribution.  Beth was clearly authorized to act in her capacity as personal representative and deed the Properties to herself and Kevin as joint tenants. No breach of duty occurred.

Ultimately, the Maine Supreme Court granted summary judgment in favor of Beth.  Upon Kevin’s death, Beth became the exclusive owner of the Properties, because the title to inherited real property in Maine is subject to administration, and Beth executed deeds as personal representative to herself and Kevin as joint tenants after Ruth’s death.

Weakened Intellect In Pennsylvania Will Contests Mon, 20 Jan 2020 17:51:27 +0000 Determining the existence of a weakened intellect in Pennsylvania will contests on the grounds of undue influence is a different inquiry than determining testamentary capacity.  The Pennsylvania Superior Court in the November 2019 case of Estate of Fabian, explained the standards for a weakened intellect analysis in its reversal of the lower court’s finding that the testator did not suffer from a weakened intellect.

The Facts of Estate of Fabian

This case concerned the Last Will and Testament of Stella Fabian, executed in June of 2014.  Stella was predeceased by her daughter, Barbara, and by Stella’s husband.  The June 2014 will left Stella’s estate to two nieces, and two nephews.

Decedent’s prior will was done in 1988.  In the 1988 will, Decedent’s estate was left to Barbara, but if Barbara predeceased her, it was divided up into 5% and 10% bequests to numerous nieces and nephews, including the contestants of the 2014 will and the proponents of the 2014 will.

The will contestants challenged the 2014 will on the grounds of undue influence, lack of testamentary capacity, fraud, and mistake.  After hearings, the challenge was denied, and the contestants appealed.  The Pennsylvania Superior Court’s opinion focused on the lower court’s finding that Decedent did not have a weakened intellect at the time the 2014 Will was executed.

When Is There A Weakened Intellect To Support An Undue Influence Finding In Pennsylvania?

The Superior Court summarized the standard for finding a weakened intellect under Pennsylvania law:

The weakened intellect necessary to establish undue influence need not amount to testamentary incapacity… Accordingly, the particular mental condition of the testator on the date he executed the will is not as significant when reflecting upon undue influence as it is when reflecting upon testamentary capacity.  More credence may be given to remote mental history.

Therefore, when determining the existence of weakened intellect for an undue influence finding in a Pennsylvania will contest, the court should look back in time, instead of focusing in a vacuum on the day of the execution of the challenged will.   This focus is different than when determining the existence of testamentary capacity, when the day of execution would be more important.

Evidence of A Weakened Intellect In a Pennsylvania Will Contest

Testimony from several witnesses revealed the following evidence to support a finding of weakened intellect under Pennsylvania law:

  • Decedent suffered from moderate to severe Alzheimer’s disease
  • Decedent was not capable of making her own medical or financial decisions
  • Decedent’s condition deteriorated from the time she was admitted to her care home
  • Decedent would not have understood the nature of her assets and the possible objects of her bounty
  • Decedent lacked the capacity to execute a will after April 16, 2014
  • Decedent performed poorly on multiple mini-mental-status exams
  • Decedent needed assistance with laundry, shopping, transportation, managing finances, using the telephone, making and keeping appointments, care for personal possessions and writing correspondence.

The Importance of The Drafting Attorney’s Testimony in a Will Contest

Here, the Orphan’s court relied heavily on the testimony of the drafting attorney and the witnesses on the day the will was signed, stating that the testator did not suffer from weakened intellect because “she was quite lucid at the time she executed the contestant will.”  According to the Pennsylvania Superior Court, this finding was in error.Generally, the Pennsylvania courts view the drafting attorney as a very important witness in a will contest case:

[T]he scrivener of a will, especially if a lawyer, is always an important and usually the most important witness in a contested will case, and, where the lawyer knew the testator prior to the execution of her will, his testimony showing voluntary and intelligent action by the testator makes out a prima facie case that requires very strong evidence to offset it.

In this case, however, placing great weight on the drafting attorney’s testimony was misplaced for a weakened intellect determination.  Here, the drafting attorney had only met decedent twice, in the span of one week.   The attorney was basically a stranger to the decedent, and could have had no way of knowing whether decedent’s mental state leading up the the execution of the will could have rendered her susceptible to undue influence. :

As noted above, because undue influence is generally accomplished by a ‘gradual, progressive inculcation of a receptive mind,’ the ‘fruits’ of the undue influence may not appear until long after the weakened intellect has been played upon.

The Pennsylvania Superior Court found that the decedent did suffer from a weakened intellect in the period leading up to the execution of the 2014 will, and remanded the case for a determination as to whether the will proponents established, by clear and convincing evidence, the absence of undue influence.