If you have a Last Will and Testament in place, you undoubtedly executed your Will as a way to ensure that your wishes with regard to the disposition of your estate assets would be honored after you are gone. Unfortunately, even a flawlessly drafted and properly executed Will cannot ensure that loved ones won’t challenge your Will. There are, however, some steps you can take to decrease the likelihood of litigation during the probate of your estate. Including a no contest clause in your Will is a simple, yet often effective, option. The probate attorneys at Hedeker Law, Ltd. explain a no contest clause for those who are unfamiliar with the concept.
Your Last Will and Testament
Executing a Will lets you make specific or general gifts of your estate assets to be distributed after your death. Whether you have amassed a substantial fortune or a modest estate, it probably matters a great deal to you what happens to your assets after you are gone. If it didn’t matter, you would not have bothered executing a Will. Instead, you would have left behind an intestate estate and allowed the state to decide what happens to your assets. In fact, the primary incentive for leaving behind a Will is to avoid letting someone else (the State) decide how your assets are distributed. It only makes sense then to do everything you can to ensure that your Will is honored and that any challenges to your Will fail.
The Probate Process and Contesting Your Will
After your death, your estate will need to go through the legal process known as probate. Although probate serves several purposes, authenticating your Will is one of the most important functions. Shortly after your death, the person named as Executor by you in your Will shall submit an original copy of your Will along with a petition to open probate to the applicable court. During this time period, any “interested person” can file a Will contest. An interested person means a beneficiary under your current Will or a previous Will, a legal heir, or possibly a creditor. Although a Will contest must be based on a challenge to the legal validity of your Will, a contestant’s underlying motivation for initiating a Will contest frequently stems from displeasure at the inheritance he/she received (or didn’t receive) under the terms of the Will.
How Can a No Contest Clause Help?
A no contest clause, formally referred to as an “In Terrorem Provision” is a clause you include in your Will that effectively disinherits any beneficiary who tries to contest the Will. Of course, for a no contest clause to be effective, the beneficiary must stand to lose something that is just valuable enough to make the beneficiary think twice before pursuing a Will contest. For example, imagine you have an estate worth about $3 million. You also have three children, two of which hold professional degrees, have families, and have taken care of you as you aged. Your third child, however, has been in and out of trouble all his life, suffers from a substance abuse addiction, and has not communicated with you in many years. You want to disinherit him entirely; however, you are convinced he will contest your Will, costing your other children a considerable amount of time and money. Therefore, you gift your “problem child” $250,000” in your Will and include a no contest clause. If he chooses to contest your Will anyway and wins, and your Will is declared invalid, he would be entitled to 1/3 of the estate (minus the costs) under the state’s intestate succession laws. If he loses, however, he forfeits the $250,000. Unless he is reasonably sure he will win, it makes more sense to take the sure money and call it a day.
Enforcement of No Contest Clauses
No contest clauses are governed by state law. Not all states recognize no contest clauses and those that do impose varying restrictions on them. The State of Illinois does recognize no contest clauses; however, they are enforced very strictly. One court, for example, recognized the no contest clause but then did not enforce it on the basis that the contest was brought in “good faith.”
Contact Probate Attorneys
Please plan to join us for one of our FREE estate planning seminars. If you have questions or concerns regarding a no contest clause for your Last Will and Testament in the State of Illinois, contact the experienced probate attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.