Estate planning is supposed to take care of all of your final affairs and make sure your family doesn’t have to suffer through months or years of probate, or watching the state take money and property from them if you’re without a will.
Creating a Chicago IL living trust allows your property to be held until after you pass so that it goes directly to the beneficiaries almost immediately. The idea is to keep it out of the probate process, and allow the beneficiaries to have it sooner.
But if your heirs or beneficiaries don’t agree with you, or believe that the trust wasn’t created honestly, it is possible that your living trust can be contested, just like a will.
Creating A Chicago IL Living Trust
A living trust is created when a “settlor” decides to give up control of property and placing it in the trust, and designating at least one beneficiary who will receive the property upon the owner’s death. The settlor must intend to create the trust relationship, that is, giving up the property for the beneficiary’s use, then transfer the property into the trust. The actual property must be transferred into the trust as the documents direct.
Contesting The Trust
Once the Chicago IL living trust is created and the property is transferred, it will belong to the trust until the settlor is deceased.
The settlor must have the mental capacity to initiate a trust, and have created it without any undue influence. If the settlor had diminished mental capacity, and was incapable of creating the trust on his or her own, an interested party can contest the trust, within six months of the date of the will submission. Other reasons for contesting a living trust in Chicago IL include a claim that the settlor was deceived into creating the trust by fraud, or vague, ambiguous language in the trust.
“Interested parties” are individuals who are beneficiaries, individuals who would have a claim on the estate if there was no will or trust, such as a surviving spouse or child, and anyone else who might have a claim on the estate under a previous will or trust agreement. The individual who files the lawsuit must have an interest in the outcome of the case.
Proving Undue Influence
There are three factors you will have to prove in order to show that undue influence was inflicted on an individual who was not mentally capable of creating a trust:
- A confidential relationship based on trust between the settlor and the party influencing the settlor
- A diminished mental state brought on by coercion or pressure from the influencing party
- That the individual who gained from the undue influence received a larger share than he or she would have otherwise.
These claims intend to prove that the document wasn’t a true representation of the decedent’s final wishes for his or her estate, and was heavily influenced by an individual who shouldn’t have had a say in the matter.
A lawsuit claiming that the document is “defective” seeks to show that the document does not comply to Illinois law. The individual filing the lawsuit is required to prove with convincing evidence that the document is, indeed, defective.
Caveat: The No-Contest Clause
Some living trusts may be created with a clause that causes a beneficiary to lose his or her rights to the trust if they decide to contest it. Courts tend to uphold these clauses, so it’s important that the individual contesting the clause look for “no contest” before proceeding.
Potential Outcome
Generally, invalidating a will involves going to trial. Once you’ve decided to contest the trust, you’ll file a petition with the clerk of court. Once you’ve received a court date from the clerk, you’ll need to notify the trustee, as well as any other beneficiaries of the trust. Keep copies of your proof of service.
Frequently, individuals who contest a trust are not beneficiaries of the trust, but they would inherit under state law if there were no will (known as “intestate.”) Should the court decide that the trust is invalid, the court may be required to distribute the property from the trust as it would for someone who died without a will.
The court may also decide that the trust is completely valid, and the suit will be either dismissed or decided accordingly. An Illinois attorney who specializes in living trusts can help decide if a lawsuit is the right answer.
Chicago IL Living Trust And Estate Planning Attorney
James C. Provenza is an estate planning attorney in Illinois with years of experience helping clients take care of their affairs, and to make sure their wishes are carried out. Call our firm today at (847) 729-3939, or use our online contact form.
