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Home Practice Areas: Probate Law

Traditionally, probate law largely involved the preparation of Wills and other estate planning documents and assisting clients in filing the estate of a deceased loved one for probate or possibly making a challenge to a Last Will and Testament or the conduct or service of an Executor or Administrator of an Estate.  However, as the population ages, individuals are increasingly facing difficult decisions concerning the short and long term care of family members.  In some circumstances, family members are on the same page and are jointly seeking help in the process of having someone appointed to look out for the welfare (called a guardian) and finances (called a conservator) of a parent, sibling, child or relative (called a ward).  In other situations, the family may be in disagreement over whether a guardian and/or conservator are necessary or, if appointed, who the guardian and conservator should be.  These cases are highly emotional and difficult on a family.  Most often, the situation involves conflicting opinions about who is best able to provide care.  However, in severe cases, the situation involves allegations of abuse, fraud and mismanagement of the ward and his or her property.

Estate Planning

Estate planning clients range from young couples with new children, families who are being split by a divorce or blended families created by second or third marriages, families who, due to aging of children or others have a Will that is out of date and elderly couples who sense that their time is drawing closer and wish to ensure that things are arranged as they wish.  All of these individuals have modest estates, investments and assets.  They do not need or require the confusing, high priced estate planning that is marketed and sold.  Most often, these estate documents only complicate their lives and cause more uncertainty about what will happen when they pass away.  O’Dell & O’Neal has the ability to provide services and assistance throughout the probate area of law.  O’Dell & O’Neal provides simple estate planning and preparation of simple estate documents at an affordable rate.  The goal is to provide the client with peace of mind that their affairs and their families are secure in the event of their death.  These services can include preparation of powers of attorney and advance directives for health care.

Estate Probate

After the loss of a loved one, a will is either probated or an intestate (meaning without a will) estate is administered.  The probate process is critical to ensure the orderly administration of affairs, proper notice to creditors and closure of the matter to avoid unknown claims being asserted at a later date or time.  In most instances, the probate process is done by consent.  In some instances, contested issues arise over the probate of an estate.  These issues can include concerns over the validity of a Will arising from disinheriting a child or spouse or a bequest of a disproportionate amount to a child or spouse.  Even if a Will is admitted as being valid, disputes can arise over which property belongs in the estate of the deceased, whether the named executor is fit to serve or whether the executor, after being placed into service, has violated his or her fiduciary duties to the beneficiaries by self-dealing, fraud, mismanagement or conflicts of interest.

O’Dell & O’Neal is able to assist families in these circumstances.  The firm can assist a family in the orderly process of probate when all involved consent and simply seek legal help in making sure that the matter is handled correctly.  The firm is able to provide options to the client to allow the client to take on those tasks over which the client feels comfortable and allow the firm to take those tasks over which the client has less confidence.  This approach helps moderate the overall costs of the process.  If the situation is contested, O’Dell & O’Neal has extensive experience in all aspects of probate litigation.  These matters are highly emotional and the firm serves to provide detached, professional advice in order to allow the client to make prudent decisions.  Probate litigation requires appropriate balance between aggressive and assertive legal positions and acknowledgment of the family dynamics at play.

Guardian & Conservatorships

The issue of deciding the need of a guardian and conservator and deciding whom to nominate to fill those roles can be taxing on families.  In many situations, external forces such as hospitals, skilled nursing facilities and nursing homes are providing pressure on the family to have a decision maker in place.  The emotion of the situation can be overwhelming.   Disputes can arise over whether a guardian or conservator is even necessary and over who should serve.  Once in place, a guardian or conservator may be subjected to claims that their services are no longer necessary or have been contrary to the interests of the Ward.  In extreme situations, executors and conservators can face claims of abuse, fraud and mismanagement.

O’Dell & O’Neal has experience and provides services in these situations.  Just as in the probate of estates, the firm provides steady guidance and advice in having a family navigate the process of obtaining guardianship and conservatorship of a parent, child or sibling when everyone agrees to the outcome.  O’Dell & O’Neal also provides representation for those individuals who have differing opinions over the situation.  The firm represents family members who believe that the estate is being mismanaged or the care provided is inappropriate.  The firm has also represented guardians and conservators facing such claims.  In all instances, O’Dell & O’Neal provides a commitment to aggressively advocate for the desires and wishes of the client understanding that there is nothing more critical or personally important than the well-being of a family member.