For most people, one of the primary reasons they create an estate plan is to ensure that the State of Illinois does not get to decide what happens to their estate assets after their death. If that is one of your primary estate planning goals, you should consider the likelihood of someone contesting your Last Will and Testament and plan accordingly. If someone launches a successful Will contest, your efforts to determine the fate of your assets will be in vain and the State intestate succession laws will be used to distribute your estate. One of the grounds used to contest a Will is lack of testamentary capacity. The Vernon Hills estate planning lawyers at Hedeker Law Ltd. offer tips on preventing a Will challenge based on your testamentary capacity at the time you execute your Last Will and Testament.
Probate Basics – What Happens after Your Death?
Shortly after your death, the legal process known as “probate” will be initiated by the individual you named as Executor in your Last Will and Testament. Probate serves several important functions, one of which is to authenticate the decedent’s Will. As such, your Executor will submit an original copy of your Will to the probate court when he/she initiates the probate of your estate. If no one contests the Will, your estate assets will be distributed according to the terms of that Will at the end of the probate process.
Contesting a Will in Illinois
In the State of Illinois, anyone adversely affected by a Will may challenge the validity of the Will within six months after the date the Will is admitted to probate. Contrary to how a Will contest is often portrayed in the media and Hollywood, an individual cannot contest a Will simply because he/she is unhappy with the inheritance (or lack thereof) left to him/her in the Will. In reality, to contest a Will the contestant must allege, and eventually prove, grounds on which the Will could be declared invalid. Once a Will contest is filed, the probate process effectually comes to a halt while the contest is litigated. If the contestant is successful, the Will is declared invalid, and the court looks for another valid Will to use to probate the estate. If none is located, the Illinois intestate succession laws are used to distribute the estate assets. If the contestant is not successful, the probate of the estate resumes using the Will admitted to probate.
Grounds to Invalidate a Will – Lack of Testamentary Capacity
“Lack of testamentary capacity” is one of the grounds on which a Will can be invalidated in Illinois. Testamentary capacity is 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 a disposition of the property according to some plan formed in one’s mind.” Because the law presumes a Testator was of sound mind at the time a Will was executed, a contestant has the burden of proving otherwise.
Tips to Prevent a Will Challenge Based on Capacity
A Will challenge based on capacity centers around your mental state at the time the Will was executed. Therefore, implementing some simple preventative measures can greatly reduce the odds of a successful challenge based on lack of testamentary capacity.
- Have your Will drafted by an experienced estate planning attorney, preferably one with which you have an ongoing relationship so that he/she can attest to your mental state at the time you signed the Will.
- Execute the Will in the attorney’s presence along with other office staff if possible.
- Schedule a doctor visit with your primary care doctor within a couple of days of the date you sign your Will so that your doctor can also attest to your mental state.
- Draft a “Letter of Instructions” to go along with your Will and include a clear statement, in your own words, about your mental state at the time and include an explanation about any questionable decisions you made in your Will.
Contact Vernon Hills Estate Planning Lawyers
For more information, please download out FREE estate planning worksheet. If you have additional questions or concerns regarding how to prevent a Will contest, contact the experienced Vernon Hills estate planning attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.