Scenario: A “local” sibling provides care and support for a parent at the end of life, while the other sibling(s) is “away,” -physically or psychologically. Typically the local sibling “helps” or controls aspects of the elderly parent’s life while growing a feeling of entitlement. For convenience, the local sibling may have been added as a signatory to the parent’s checking account. The distant sibling(s) suspects undue influence on the part of the local sibling, and a dispute arises, often creating contentious litigation.
Multiple marriages, children from previous relationships can present complexity and that will challenge simple estate distribution. For example, the husband may predecease the wife who eventually loses touch or becomes estranged from his children. She can then make a new estate plan based on her wishes. Depending on her relationship with her stepchildren, she might decide to leave everything to her own kids. The original intent of his will is lost and his assets are passed onto her children exclusively.
Everyone should be happy, but the later-in-life spouse is often the root of probate challenges. There is no denying the fact that some young people prey on the loneliness of the elderly in order to access their estate when they die. Sometimes, a late-in-life spouse has no ill intentions but simply can’t fit into the existing family paradigm. Such scenarios often result in will contests. The spouse claims true love. The children claim undue influence.
Undue influence on a person can result in changes to wills or trusts. Further, it can make it very hard for you to inherit what is rightfully yours. Fortunately, you can contest the will if you believe that your mom was influenced to change it prior to her death.
What is undue influence?
By law, undue influence is when a person deprives another of freedom of choice or substitutes his or her choice against that person's desire. For example, if the person who is now named in the will had befriended your mother while she was in a state of dementia, your mother may have thought it was you suggesting the updates to her will. It's very important to be able to present undue influence in court, and be able to prove your mother's inability to make sound decisions due to mental impairment. It could sway the court rule to your favor.
If you need to prove your mom's mental impairment, you will need to present medical information to the court. Having a specialist speak to the severity of her condition may help. Once this is done, the court can decide if the inheritance should revert and be given to you as originally intended.
Everyone needs a solid estate plan. It ensures that your will is carried out after passing. You can specify:
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1 > Social Security Benefits:
While Social Security benefits can't be divided in your divorce, there are rules that impact your benefits if your marriage has lasted 10 years or more. For example; if you are over the age of 62, you can collect post-divorce Social Security benefits on your former spouse’s record without reducing benefits to your former spouse. If your former spouse dies, you may also be entitled to survivor benefits.
2 > Retirement Accounts:
Careful financial planning decisions need to be made to ensure that you will be financially secure and able to enjoy your retirement. Retirement accounts are typically divided by a Qualified Domestic Relations Order (QDRO), which is a separate court order that covers the division of retirement benefits.
There is no legal provision that permits either partner to testify in court about why the marriage failed. This means that one partner’s infidelity won’t be discussed in front of a court.
Ohio courts don’t consider evidence relating to adultery. In Columbus and all of Ohio, it simply isn’t necessary. All that’s necessary for a divorce is the agreement of both partners. Ohio divorce law, therefore, aims at smoothing the process of separation and avoiding emotionally charged accusations and testimony. While divorce will never be a pleasant experience, Ohio divorce laws aim to make it as stress-free as possible.
This is not the same is some states where adultery is a crime which may carry severe penalties. In those states, recriminations fly around the emotionally charged courtroom. If you’re the wronged partner, you might think that adultery should be punished in divorce proceedings.
Estranged couples might be worried about adultery affecting a judge’s decision. But alimony is calculated without any reference to marital misconduct. Adultery has no effect on alimony payments. By definition, alimony payments are required whenever a judge decides one partner needs financial support to live at the same standard they did while married. Alimony payments are most commonly required when there is a disparaging difference between the partner’s incomes. An Ohio judge orders alimony payments based purely on income. Adultery has absolutely no effect. The only [..]
1 - Immediately close every joint account.
Since joint accounts are held by you and your spouse together, both of you are equally responsible for the debt, no matter how it is distributed in the divorce. "If an account is left open, your ex can add more debt, make a late payment, miss a payment or default, and you will also be held responsible," says Bill Hardekopf, a credit expert and CEO of LowCards.com. "The creditor reports account activity to the credit bureau in both of your names. This affects the personal credit score for both individuals."
2 - Notify your creditors of the upcoming divorce.
After you close any joint accounts, send a certified letter notifying your credit card companies, banks and other lenders about your divorce.
"Ask them to provide a current account statement and tell them that you do not intend to be held liable for any debt accumulated after the date of the written letter," Hardekopf says. "Request that they put the account on inactive status so no new additional charges may be added, and stipulate that once the balance is paid in full, the account is to be closed completely."
If your spouse is an authorized user on any of your individual accounts, or you're an authorized user on spouse's accounts, each of you should remove the other from the accounts. This will reduce the risk of either party racking up new, unauthorized debts. Again, revoke the authorization on the account via certified mail.
3. Get monthly statements
Have statements for remaining joint accounts mailed to you each month so you can monitor that payments are being made promptly. Why not just print them? Your spouse may change the passwords.
4. Don't fight tooth and nail for the house
A lot of times in divorce, especially for women, they want to stay in the marital home because that's where they've raised the kids and they have emotional attachment to the home. Be sure you can really afford the home because it's often more of a liability than an asset.
5. Keep your address up to date
Submit a change of address card at the post office or update it online at usps.com. Don't miss a payment on a credit account because you forgot about the bill or your ex didn't let you know the mail was just sitting there in your former home.
6. Avoid revenge shopping
Sadly, some people going through divorce try to get back at a soon-to-be ex-spouse or a former mate by going on big shopping binges. It's almost always a bad move. Maintain your normal, current spending habits and not to let debt spin out of control. Even though it oftentimes would be considered a marital debt, a judge may order the spouse who wasted the money to assume that debt.
One of the most common and useful discovery tools in every will contest is obtaining vital information from the estate planning attorney that helped write the will that is being challenged.
The estate planner often provides fertile ground where the contesting party can recognize, grow and present viable theories to support or invalidate a will. Often, the estate planner is the last legal professional that the testator (the person signing the will) consulted prior to signing the will, or prior to their death. When a will is contested based on a lack of mental capacity or undue influence, the estate planner’s testimony provides key facts about the event of execution.
The patriarch of the family took great care to create a will and various trusts to provide for his children, as well as the wife of one of his sons who had passed away. He also created a charitable foundation in honor of his late wife. His estate documents provided the charity with a $4.5 million gift.
Equal Ownership Interests, But Not Equal Decision-Making Authority
The man launched a new business in 1978; that appeared to be the main source of contention is the legal battle. Through trust documents related to the business five siblings and their sister-in-law were each given equal ownership interests in the multi-million dollar entity. However, one sister was named trustee and given exclusive control of the 100 shares of voting stock. Some of the siblings argued that the structure of the trust shows that their father's intent was to have assets sold to provide for all of the heirs. The sister who was given control argued that the elaborate estate plan shows that her father wanted the company and other assets to be kept in the family.
Keep your estate planning documents up to date,
Whether your divorce is recent or in-process, if you haven’t modified your estate plan, it is time to consult a lawyer and get it done.