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We firmly believe that everyone has a right to pass their assets to whomever they want upon their death. If your desired estate plan is likely to face pushback in the nature of a will contest or the like from adult children or other family members after your death, then proper planning and documentation during the estate planning process is key. Key to both ensuring that your wishes are binding and carried out, but also minimizing the chances that such a contest will occur.
Disinheriting a child, bequeathing more to one or more of your children than to the others, making testamentary gifts to significant others, or large gifts to charities can occasionally give rise to an upset heir contesting your will or other estate planning documents. The basis of these contests is often that the testator did not have the capacity to know what they were doing or were unduly influenced, and therefore the will (or other estate planning device) is not a valid expression of the testator’s intent.
Will contests are complex and the merits of a will contest lawsuit are even more so. This blog post teaches about proper estate planning and how it can minimize contested wills. If you are ready to get started, contact our estate planning attorneys in Downers Grove today. We will ensure that your plan addresses your needs and gives you the security you want.
Do you worry if a loved one might question your state of mind when you created your estate plan? You may think that someone might claim you did not have the testamentary capacity to write a valid will. In Illinois, testamentary capacity is the “mental ability to know and remember who are the natural objects of [one’s] bounty, to comprehend the kind and character of [one’s] property, and to make disposition of the property according to some plan formed in [one’s] mind.” Beyers v. Billingsley, 54 Ill.App.3d 427, 369 N.E.2d 1320, 1328, 12 Ill. Dec. 306, 314 (3d Dist.1977). Or that your best friend or closest child pressured you into making gifts to them.
In instances such as those, you should work with an experienced estate planning attorney who can document your wishes, ensure proper document execution, instruct third-party documentation of your capacity, and discuss with you various strategies to make your estate plan easy to enforce and difficult to challenge.
One component to consider in dissuading a contested will is to have a no-contest clause in your estate plan. This is also known as an in-terrorem clause. The no-contest clause typically states that anyone who files a lawsuit challenging what is listed in the estate plan will not receive anything in your estate. These clauses are allowed in Illinois. However, it’s important to note that such clauses must be narrowly drafted and are not always enforced. For instance, a beneficiary may raise a good faith challenge to the estate and still be entitled to inherit under the will in spite of a no-contest clause. Our estate planning attorneys in Downers Grove can help you decide if a no-contest clause is right for your estate.
Another compelling part of an estate plan to avoid a will contest is having a video recording when you sign your will. Practitioner opinions will vary on whether video taping is helpful to avoiding or defending a will contest. It is important that you work with counsel to decide what is right for you.
Another approach to avoid will contests is to have a family meeting during your lifetime to discuss your estate plan, the reasons for the plan, and your expectations that your plans be respected. This strategy is not right for everyone but is one of many in the experienced estate planner’s tool chest. In the case of a family meeting approach, attorney guidance is important to guide just what that meeting looks like, who should attend, and when and where it should occur.
Lastly, a will contest can be avoided with estate planning by avoiding probate. This can be done in several ways, such as giving your property to intended beneficiaries while you are alive, or putting valuable real estate and personal property in a trust. However, the conversation does not stop there. While probate avoidance does prevent a will contest, it does not wholly avoid or prevent challenges or disputes.
For instance, there are various ways that an aggrieved heir or beneficiary can challenge lifetime gifts (particularly end-of-life gifts) as well as beneficiary designations, joint accounts, and trust-based estate plans. This is why it is important to work with an attorney who can craft an overall plan best suited to promote clear and enforceable planning, discourage contests, and ensure that the people that you want to benefit are the people who do benefit from your estate.
By having a proper estate plan, you can feel more confident about your family’s financial future. Trusts, wills, and other essential estate planning tools let you address financial and healthcare matters for the rest of your life, while ensuring that your family will be cared for after you pass. Contact our estate planning attorneys in Downers Grove at SBK Law Group if you are ready to ensure your family’s future. Just call (630) 427-4407 for a consultation.
