When constructing your estate plan, it’s important to consider the variables that can happen and discuss them with your estate planning attorney. Once you’re gone, you can’t go back and change anything, especially in your will.
During the course of the probate process, your will could be challenged by heirs, your spouse, any beneficiaries, or other parties who feel they were unjustly left out of your will. One party may raise allegations that your will was forcibly signed, you didn’t have the mental capacity to create and sign it, or give the court other reasons why your will should be contested.
Filing A Probate Caveat
If there are any questions or irregularities—real or perceived—the first step for contesting the will is to file a probate caveat.
This is a document that asks the court to suspend the probate process for the will until an investigation can be carried out into the validity of the will.
The individual who files this document is called a caveator, and the court will hear evidence from this individual to determine the will’s validity. If a judge rules that the caveator’s case is valid the probate will be stopped, and the validity will be litigated in court.
Some reasons that a caveator may raise regarding the validity of the will include:
- A dispute regarding the inclusion or elimination of an heir
- A belief that the will was created under duress
- A belief that the decedent did not have the mental capacity to create and sign the will, and it is therefore invalid
- A belief that the will was forged, and not created, signed or approved by the decedent
- Preventing the executor from distributing assets on an interstate basis, indicating that no will existed
The probate process stops until the court hears evidence from the caveator, who explains why he or she believes the will should be contested. Should the court find the evidence credible, the probate process is cancelled. But if the evidence doesn’t support the caveator’s claim, the probate process continues.
An experienced estate planning attorney is familiar with these kinds of situations, and will understand any “red flags” that he or she observes during the process. Having this kind of legal counsel will also help to mitigate any possible caveats or challenges to the will later.
Preventing Probate Caveat
Some individuals add a clause to their will stating that if any of the named beneficiaries decide to contest the will, they will receive nothing. However, that won’t work if the caveator isn’t a named beneficiary.
The best way to prevent a probate caveat is to consult with an estate planning attorney who is familiar with estate law, elder law, can help ensure that your will is done correctly. He or she will be familiar with any red flags that may appear, and can take steps to mitigate potential obstacles to the probate process.
Chicago’s Trust And Estate Planning Attorney
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 the way you want them. Call our firm today at (847) 729-3939, or use our online contact form.