Estate and Probate Attorney in Cincinnati Ohio » Estate Litigation

What is a Wrongful Death and Survivor Action?

admin — Tue, 29 Mar 2011 09:03:39 +0000

If a person dies in a car accident, for example, the executor or administrator has the right to bring an action for wrongful death and a survival action against the driver who caused the accident. A wrongful death action is brought by the estate to compensate the family of the decedent for their loss of support and affection. The potential beneficiaries of this action are the spouse, children, brothers and sisters, and parents of the deceased. There is also a survival action which is an asset of the estate to be divided per the will or by law. This is the compensation to the decedent for the pain and suffering, medical bills, and lost wages prior to death.

Let’s assume a person is struck by a car and lives for 48 hours and then dies. The person has a wife, a child, and a mother. There is a million dollars judgment for the loss. The Probate Court will divide and allocate the judgment between the survival action and the wrongful death action. For example, the Judge allocates $200,000 to the medical bills, lost wages and the pain and suffering of the decedent prior to death. This is an estate asset because it represents what the decedent lost prior to death. That amount will go to the wife under the terms of the Will. The $800,000 allocated to the wrongful death action is divided based on the relative losses of the wife, the child, and the mother. The allocation is based on age and support issues of the three. If the child is three, he will get more than is he is seventeen, because there are more years of support. The mother of the decedent should get less because she is older and there is no legal obligation to support her.

Actions against the Executor/Administrator

admin — Tue, 29 Mar 2011 09:02:09 +0000

The executor, administrator and trustee are also called fiduciaries. This is because they owe the estate, trust, and the beneficiaries of the estate or trust a fiduciary duty to act in the best interest of the estate, trust, and the beneficiaries. This is the highest levels of legal duty. The fiduciary acts with the same regard as they would if it was their own estate or trust. The beneficiaries can bring an action to remove the fiduciary and to recover money under the following:

Delay in the administration
Mismanagement of the estate or trust affairs
Self dealing – using assets for their own benefit
Breach of a fiduciary duty
Breach of loyalty
Failure to communicate to the beneficiaries

Will Contest

admin — Tue, 29 Mar 2011 09:00:56 +0000

Only certain people are allowed to contest a will. These people are said to have “standing” which means they have the legal right to bring an action. There are three groups of people included: people who are named in the will; named in a prior will; or heirs at law who would inherit if the will was found to be invalid. Thus, you cannot contest your neighbor’s will just because you don’t think it reflects your neighbor’s wishes.

There is a time limit on the filing of a will contest. Under Ohio law a will contest must be filed within three months after the filing of the certificate in the Court indicating everyone entitled to notice has received notice or has waived notice.

A will contest is filed in Probate Court indicating the grounds for the contest. The person who is contesting the will must prove:

The will was improperly created or modified,
The person was otherwise unduly influenced,
The person was not mentally capacity at the time the will was signed,
Improper witnessing or signing of the will,
The will was created by some sort of fraud, or
There is a more current will than the one filed

Ohio requires that such evidence be presented through the same process in which other civil actions are pursued, including the right to a jury trial. The will contest can be brought before a judge or a jury.