Family disagreements can arise in all types of estate-related legal matters, from disputes over appointment of a conservator for an aging parent to arguments over the administration of a family trust involving a business. While many differences of opinion can be resolved through a thorough airing of views and explanation of legal realities, sometimes a party decides that the matter must be resolved through probate litigation.

A recent opinion issued by the Court of Appeals of Ohio that reversed a decision from the Hamilton County Court of Common Pleas in Cincinnati considered a claim filed by an estate administrator against family members of the deceased. Estate administrators, commonly known as executors, are responsible for carrying out the wishes of the deceased in the probate administration process.

Several months after the decedent’s death in 2009 following a fatal accident, the original executor filed a complaint alleging that the decedent’s mother and three other individuals had concealed assets that belonged to the estate, including several vehicles and other personal property. The alleged misdeeds included the transfer of nearly $70,000 from three bank accounts affiliated with a limited liability company owned solely by the son. The mother had signatory authority over the accounts.

Protecting or Challenging an Estate via Probate Litigation

The initial executor herself passed away shortly after filing an amended complaint, and the court appointed a replacement. During this period, a local deputy sheriff was unsuccessful in three attempts to formally serve the mother with notice of the legal action. However, his notes indicated that he was on one occasion able to share the court date with her on the phone.

The mother appeared without a lawyer before a magistrate at an initial hearing and she admitted to some of the allegations while contesting others. During a two-day trial, she represented herself, questioned witnesses, provided testimony and delivered a closing statement. The mother and one other party were found guilty of concealing assets.

Subsequent to the verdict, the mother retained an estate litigation attorney and filed multiple post-trial objections to the court’s decision. Recognizing that the mother had never been formally served, the trial court dismissed the complaint against her, and the executor appealed.

Because of the “quasi-criminal” nature of concealed estate assets cases, Ohio probate law expressly requires that notice by citation, attachment or warrant must be served upon any person suspected of asset concealment or embezzlement from an estate. However, the appellate court concluded that the mother had waived any argument that she had been properly served by voluntarily appearing to answer the complaint and attending the trial.

Legal Issues Involving the Powers of Executors

The first goal of estate planning is to preserve a legacy in the way a person sees fit. But a second goal is equally important: establishing confidence that those plans will be dutifully carried out. For that reason, designating a responsible family member, capable friend or trusted estate planning lawyer as executor is an important decision.

Despite those plans, disputes between estate administrators and family members can occur in many forms, and they are certainly not always initiated by the executor. Family members who have real concerns about an appointed administrator’s capabilities or intentions can petition the court to seek removal of the executor.

Ohio probate attorneys serve clients by protecting their financial interests during a time that can be fraught with emotion and stress. Whether helping a client understand will and trust options or trying a case in probate, the core of that service is working to ensure that every last detail is executed properly.

This entry was posted in Estate Planning, Living Will, Probate Law, Wills and tagged , , , , , . Bookmark the permalink.