The loss of a family member or close loved one is difficult enough to accept under the best of circumstances. If you have lost a loved one, and you have reason to believe that the Last Will and Testament submitted for probate is not valid for one reason or another, you are undoubtedly having an even harder time accepting your loss. The good news is that you may be able to do something about your concerns regarding your loved one’s Will by filing a Will contest. A Will contest is typically a complicated legal process that should only be embarked upon with the assistance of an experienced Illinois estate planning attorney. To give you some idea what is involved, however, you should know the steps involved in contesting a Will in Illinois.
The Probate Process
When someone dies, they leave behind an estate that consists of all assets owned by the decedent at the time of death. That estate is typically required to go through the legal process known as probate. Probate is required for several reasons, including to:
- Authenticate the decedent’s Will
- Identify and locate all estate assets
- Give creditors an opportunity to file claims against the estate
- Ensure that all taxes owed by the estate are paid
One of the first steps in the probate process is for the Executor of the estate to file an original copy of the decedent’s Last Will and Testament. It is at this stage that you should make the decision to contest the Will if you believe you have grounds to do so.
Contesting a Will in Illinois
Contesting a Will in Illinois will typically involve the following steps:
- Deciding if you have standing to contest the Will. A Will contest cannot be filed by just anyone. You must have “standing,” which is a legal term that simply means you have the legal right to intervene or initiate an action. In the case of a Will contest, you must be considered an “interested person.” That typically includes:
- Beneficiaries under the Will submitted for probate
- Legal heirs of the estate
- Beneficiaries under a prior Will
- Creditors of the estate
- Making sure you have grounds to contest the Will. In addition to standing, you must have grounds to contest the Will. Contrary to popular belief, you cannot contest a Will simply because you are unhappy with your inheritance (or lack thereof). Acceptable grounds that may be used to contest a Will in Illinois include:
- Undue influence – claims the Testator was pressured or coerced into including provisions in the Will or signing the Will.
- Lack of testamentary capacity – alleges that the Testator lacked the mental capacity needed to execute the Will.
- Fraud or forgery – this can mean anything from pages added after signing to the Testator was tricked into signing the Will because he/she thought it was another document.
- Revocation – claims the Will admitted to probate was legally revoked prior to death.
- Ignorance of contents of Will – for example, if the Will was prepared for the Testator but he/she was not given the opportunity to read through the Will prior to signing it.
- Filing the appropriate legal documents with the probate court. To contest the Will, you must file the required documents with the probate court within the time frame allotted by law.
- Discovery process. Both sides (you and the Executor of the Will) will engage in the discovery process which involves sharing of information and evidence that will be presented at trial.
- Negotiations and mediation. Many Will contests are settled outside of court without the need for a trial through negotiations and/or mediation.
- Trial. If attempts at settling the matter are unsuccessful, the case will proceed to trial in front of a judge or jury. If the Will is fund to be valid, the probate process will resume using the terms of the Will to distribute the estate assets. If the Will is found to be invalid, the court will look for another valid Will to use. If no Will is located, the Illinois intestate succession laws will decide how the decedent’s assets are distributed.
The moral of the story is to help prevent a will contest over your own plan. Meet with our office to prepare quality documents following the proper formalities. By including well drafted documents in your estate plan, litigation and contests can be avoided.
If you have questions or concerns regarding contesting a Will in Illinois, contact the experienced Illinois estate planning attorneys at Nash Bean Ford & Brown, LLP by calling 309-944-2188 to schedule your appointment today.