After you’ve written and signed your will, and completed other parts of your estate plan, you probably think you’ve done what you need to do. Unfortunately, that’s not always true.
The death of a loved one is an emotional time for a family. Fights among relatives and other beneficiaries are not uncommon, even if you believe you’ve done the right thing for them. If someone believes they were “short-changed” in your will, a challenge can derail probate, cost thousands, and set back settlement for months and even years.
You have no way of knowing who might challenge your will once it’s activated, and you will not be here to explain anything. At that point, it will be up to the courts to sift through everything and determine your intentions at the time you created your will.
Just because someone is unhappy with the contents of the will is not a reason to challenge it. However, it is possible to stop a challenge before it becomes a difficult and expensive problem for your family and beneficiaries.
In Illinois, there are four ways to challenge a will:
- Fraud or forgery, implying that the will was created by someone other than the testator and made to look as if it was the testators.
- Lack of testamentary capacity, or that the testator did not have the mental capacity to properly create and sign the will.
- Undue influence, when a family member or other potential beneficiary coerced the testator into creating the will to benefit them personally, rather than in concert with the creator’s actual wishes.
- Revocation of the will prior to the passing of the testator.
Additionally, a testator who has failed to follow the formal requirements for a will can also have their will upended through either a will contest or a formal proof of will request.
Anyone who challenges the will must use one of these reasons. Heirs and beneficiaries can challenge a will in Illinois, as well as creditors, a person entitled to a child’s or spouse’s award, or their representative.
An “interested person” has six months from the date it is filed in probate court in order to challenge the will. The process uses Illinois’ civil litigation procedures.
Should the will be found to be invalid in court, the estate returns to the most recent previous version of a valid will. In the absence of one, the estate is probated according to Illinois’ intestacy laws, as if the deceased had no will.
Prevent A Will Challenge
It’s important that when creating your will that you recognize and address any possible problems sooner rather than later.
A popular way to stave off a will challenge is to add a “no-contest” clause to your will. Any heir or beneficiary who unsuccessfully challenges your will loses their claim to your estate and receive nothing.
One of the best things you can do is create your will (and estate plan) when you are in full charge of your facilities and you understand everything. This can put a stop to the claim that you were “not in your right mind” when you created your will.
Discuss your will and its contents with key family members ahead of time so that there are no questions about your intentions before it happens. Let them know what you’ve done and why ahead of time.
Establish trusts for minors, and for family members who may need a little guidance on keeping their inheritance a little longer. Discretionary lifetime trusts are flexible, and an excellent way to keep a beneficiary from squandering everything while encouraging them to make and achieve personal and financial objectives.
Review your will and estate plan once a year, or more if necessary, to ensure that it is still in line with your intentions. Has one of your children married, divorced, or had another child? Has a family or personal relationship changed to the point where you no longer want them as a beneficiary in your will? Situations like these may call for an update of your estate plan to ensure that everyone is covered, your will is executed as written, and there are no questions about your intentions.
Chicago’s Trust And Estate Planning Attorney
You want to make sure that your will and estate plan do exactly what you need them to do without any challenges or interferences from anyone. The best way to do that is to work with an Illinois estate planning attorney who understands the process and will make sure your estate is probated and distributed as you intended.
James C. Provenza is an estate planning attorney in Illinois with more than 25 years of experience helping clients with their estate planning needs. He can work with you to ensure that your final wishes are carried out as you intended. Call our firm today at (847) 729-3939, or use our online contact form.