Your Last Will and Testament is your opportunity to decide who will receive your estate assets when you die. When you die, your estate will likely be required to go through the legal process of probate. During probate, your estate assets are identified, located, and valued. Creditors are also given the right to file claims against the estate. Eventually, your estate assets are transferred to your chosen beneficiaries pursuant to the terms of your Will. What happens though if someone contests your Will and is there anything you can do to prevent that from happening? One option is to include a no-contest clause in your Will. Though it cannot prevent a challenge to your Will it can provide strong incentive for someone not to pursue a Will challenge.
When a valid Will contest is filed the probate of the estate effectively comes to a halt until the challenge to the Will is fully litigated. The probate process cannot proceed until it is determined whether or not the Will submitted to probate will guide the distribution of the estate. If the Will is invalidated the court will look for a prior valid Will or the estate will be probated using the Illinois intestate succession laws. The entire process can cost a great deal, both in terms of time and money, adding an incentive to discourage the filing of a Will contest.
A no-contest clause basically provides a penalty to the challenger if the challenge is not successful. For a no-contest clause to work, however, you must give the potential challenger a gift of some type in your Will. For example, assume that you have an estate valued at approximately $2 million. You have two adult children, one of whom you would prefer to disinherit; however, you are concerned that doing so would surely prompt a Will contest. Instead, you gift that child $100,000 in your Will and add a no-contest clause which states that should he challenge the Will unsuccessfully he will receive nothing from your estate. If the Will challenge succeeds he stands to gain half of your estate (split with his sibling), or $1 million; however, if it fails he gets nothing. His other option is to simply take the $100,000 and not contest your Will. As long as the known gift is substantial enough, most people will take it and not risk losing everything.
Because each state decides whether or not they will recognize and/or enforce a no-contest clause in a Will it is imperative that you consult with your estate planning attorney if you are considering including one in your Last Will and Testament. For additional information or advice regarding no-contest clauses, contact the experienced Illinois estate planning attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.
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