A will is an essential part of creating an estate plan. Your will explains how your assets should be distributed and lists your heirs. Unfortunately, after your death, others may try to contest your will, whether it be loved ones, family members, creditors, or other parties. Disputes between family members can create huge rifts between loved ones and even lead to additional court cases. Many people creating a will or estate plan want to avoid any room for error and ensure that their will cannot be contested.
What Are the Grounds for Contesting a Will?
An heir or wishful heir can’t contest a will because they’re upset at the contents. There needs to be a valid claim. In Illinois, valid reasons for contesting a will include:
- Undue Influence: If the person who created the will was under the undue influence of another party, the terms of the will may be invalid. Undue influence refers to someone exerting their will over the creator of the trust to favor themself or disfavor an intended heir.
- Fraud: Someone other than the assumed creator of the trust signed the trust fraudulently or defrauded the creator of the trust into believing they were signing a different document.
- Lack of Necessary Capacity: Necessary capacity means the creator of the trust understood their assets and estate, their familial relationships, and the legal meaning of signing a will.
- Improperly Signed: In Illinois, a will requires two reliable witnesses during the signing of the document to be considered valid.
A previous draft may instead be used if a will is determined to be invalid. If there is no previous draft of the will, your estate inheritance will be determined based on Illinois’ succession laws.
Protecting Your Will Against Contests
There are steps you can take to prevent will contests.
- Begin Your Estate Plan EarlyCommonly, the claim of lack of necessary capacity will be used if the creator of the will was old or in bad health during its creation. This is less likely if you plan out and execute a will early in life. That way, your mental state and awareness will be hard to dispute. You can always modify your will if there are changes in your life, but having a clear line of prior wills can show your capacity.
- Create a No-Contest ClauseA no-contest clause doesn’t prohibit someone from contesting your will. However, a no-contest clause will limit or eliminate the inheritance of the person who contests the will. This type of clause is effective at preventing will contests if someone included in your will is likely to attempt to contest and will lose.
- Keep the Will UpdatedEvery few years, review your will to ensure it still reflects your wishes. Major life changes, such as divorce, marriage, family size, or a death in the family, can cause serious financial concerns and change who you want your heirs to be.
Consistently updating your will is also going to make the changes harder to contest. If your will is determined to be invalid, the prior will isn’t going to be severely different.
- Communicate With Your FamilyWhile you don’t have to disclose all details of your estate plan, it can help to talk through your will plans with your family members and heirs. If heirs or those who believe they will be heirs hear about your plans prior to your death, they are less likely to be surprised and attempt to contest it.
- Create a TrustA revocable living trust allows you to assign beneficiaries to your estate and provides more privacy than a will. A trust will also not have to enter probate.
- Work With a Bloomington Estate Planning AttorneyOne of the ways to protect your will from contests is by creating a will with an estate planning attorney. If you’re worried someone may attempt to contest your will, consult with an attorney. An attorney experienced in estate law can help you create a fully enforceable will and estate plan which clearly states your wishes and covers all potential contests. An attorney can also help you update and maintain a will throughout significant life changes. Creating a will without legal counsel leaves it more vulnerable to contests.
Q: How Hard Is It to Contest a Will in Illinois?
A: It can be difficult, time-consuming, and expensive to contest a will. In order to contest a will, there needs to be a legitimate reason it is invalid. Disliking the terms of a will is not a legitimate reason. A valid complaint to contest a will includes undue influence, lack of necessary capacity, and fraud.
Q: What Evidence Is Needed to Contest a Will Near Illinois?
A: The evidence to prove a will is invalid depends on the grounds a person is contesting the will. If the claim is of lack of necessary capacity, the person will have to provide healthcare evidence of a mental or psychological condition. If the claim is undue influence, the person who exerted that influence must have received a significant portion of the estate, acted confidentially with the creator of the will, and was active in the creation of the will.
Q: Are No-Contest Clauses Enforceable in Illinois?
A: No-contest clauses are legal and enforceable in Illinois. However, there is no way to prohibit a contest legally. A contest clause needs to be clearly worded and detailed and either lessens or eliminates the assets of any heir who contests the will. This may prevent heirs from contesting if they’re not certain they will succeed in the contest.
Q: How Long Does Someone Have To Contest a Will in Illinois?
A: When a will enters probate or is denied administration in probate, a person has six months to file to contest the will or the decision to deny. Only interested persons can contest a will, meaning that not just anyone can contest it. An interested person in Illinois law refers to those who have financial or property interests or fiduciary status in the will. This generally includes heirs, heirs under a prior will, creditors, and the executor of the will.
Stange Law Firm: Bloomington Estate Planning Attorneys
For questions about estate planning or to begin your estate plan with a professional, contact Stange Law Firm. Let us help you protect your estate from will contests.