The death of a loved one is typically followed by a period of grieving and an outpouring of emotions on the part of the family and close friends. By necessity, it is also followed by the legal process referred to as “probate” during which time the decedent’s estate is administered and estate assets are ultimately transferred to the new owners. Although probate can be full of bumps and minor obstacles along the way, it is normally a relatively uneventful process. Occasionally, however, the probate process can turn into a contentious legal battle as a result of a challenge to the validity of the Last Will and Testament submitted for probate. The Lincolnshire probate attorneys at Hedeker Law Ltd. explain what happens when someone contests a Will so you will know what to expect if you find yourself embroiled in a Will contest.
The Probate Process – An Overview
When an individual dies, that person leaves behind a legal estate consisting of all assets owned by the decedent at the time of death. This includes both real and personal property as well as both tangible and intangible assets. All estate assets must eventually be transferred to new owners. If the decedent left behind a Will, the provisions of the Will, sometimes along with a trust, provide a roadmap to follow with regard to distributing those estate assets. If the decedent failed to execute a Will prior to his/her death, the estate is referred to as an “intestate” estate. In that case, the Illinois intestate succession laws will determine what happens to the estate assets. In addition to effectuating the transfer of estate assets, probate also serves as a method of ensuring that estate creditors are notified and allowed an opportunity to file claims against the estate as well as making sure that all gift and estate taxes owed by the estate are paid.
What Is a Will Contest?
One other function of the probate process is to authenticate the Will submitted for probate by the Executor of the estate. When the Executor (named in the Will by the Testator of the Will to oversee the administration of the estate) opens the probate process the original Will must be submitted to the court for the court to authenticate the document. Contrary to what many people believe, however, a Will contest is not an opportunity for beneficiaries or heirs to complain and contest the inheritance left to them (or the lack of an inheritance as the case may be) by the decedent. A Will contest must allege a valid legal ground on which the Will could be declared invalid. Once a Will contest is filed, the probate process effectively grinds to a halt because the outcome of the ensuing litigation determines how the estate will be distributed. If the contestant is successful, the Will submitted for probate is declared invalid and the court must them look for another valid Will to use to probate the estate. If no valid Will is located, the estate is probated using the Illinois intestate succession laws. If the contestant is unsuccessful, the probate process resumes where it left off, using the original Will to probate the estate.
Who Can Contest a Will?
In the State of Illinois, a potential contestant must have “standing” to contest a Will. Standing refers to the legal right to bring the legal action, in this case a Will contest. To have standing, a potential contestant must have a “direct, pecuniary, existing interest which would be detrimentally affected by the probate of the proffered Will.” As a general rule, this includes beneficiaries under the Will submitted to the court, beneficiaries under a previous Will, legal heirs of the estate, and sometimes a creditor.
What Grounds May Be Alleged to Contest a Will in Illinois?
For the court to even allow a Will contest to continue, the contestant must allege (and ultimately prove to be successful) at least one of the existing legal grounds on which a Will may be declared invalid in Illinois, including:
- Undue influence – the influence someone exerted over a Testator rises to the level of “undue influence” when it “prevents the Testator from exercising his own will in the disposition of his estate such that the Testator’s will is rendered more the will of another.”
- Lack of testamentary capacity – defined as 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.”
- Fraud or forgery – “such conduct as a trick or device by which a person may be induced to sign the paper under the impression it is something else, or to the alteration of the will after it is signed, or the substitution of another paper for part of the will after it has been signed, and matters of like character.”
- Revocation – this includes destroying a Will, creating a new Will inconsistent with a previous Will, or declaring in writing that a Will is revoked.
- Ignorance of contents of Will – if a Will was prepared for the Testator, and he/she was not given an opportunity to read it, or was unable to read and its contents were not explained to him/her, the Will may be declared invalid.
Contact the Lincolnshire Probate Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding what happens when someone contests a Last Will and Testament, contact an experienced Illinois probate attorney at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
Latest posts by Dean R. Hedeker (see all)
- Learn More about Medicaid Planning during Older Americans Month - March 21, 2019
- What Does It Mean to Be a Guardian for an Adult? - March 19, 2019
- Are There Alternatives for Managing Property When a Person Becomes Incapacitated? - March 14, 2019