Should My Will Have a No-Contest Provision?

no-contest, Wheaton estate planning lawyerAre you worried about what will happen to your surviving family members after your death? Maybe in the course of your conversations about your estate plan, you have seen warning signs that your children or other loved ones are not thrilled about your decisions. Or, perhaps you are concerned that one of your family members will be overcome by grief to the point where they cause problems without realizing what they are doing.

If you have such concerns, you may wish to consider adding a no-contest provision to your will. A no-contest provision can help reduce the possibility of your will being challenged after your death.

“In Terrorem” Clauses

A no-contest clause is sometimes known as an “in terrorem” clause. The Latin phrase “in terrorem” translates to “by way of threat.” Put simply, a no-contest provision threatens any heir who files a will contest in an effort to deter fighting between family members after the creator the will dies.

It is common for a no-contest clause to state that any heir who challenges the will forfeits the portion of the decedent’s estate that the heir was set to receive. In some cases, such a clause will drop the challenger’s inheritance down to a nominal amount like $1.

The idea is that if there is a possibility that the heir will get nothing, that heir is more apt to accept the provisions of the will, even he or she is not happy with the decedent’s choices. It is important to understand that a no-contest provision cannot legally prevent an heir from filing a will contest. The clause will only impact what happens afterward.

Important Considerations for No-Contest Clauses

If you are giving thought to a no-contest clause, you should talk to an estate planning lawyer before you make any decisions. For a no-contest provision to work as intended, the amount you intend to leave each of your heirs needs to be large enough to create an incentive. If, for example, you named 15 different beneficiaries, each of whom will inherit $20,000, one of them might be willing to risk $20,000 to try to get more through a will contest. If you only name three heirs, however, with each set to receive $100,000, a no-contest provision may carry much more weight.

Keep in mind that the courts have the authority to set aside an in-terrorem clause if a will contest is filed in good faith. For example, assume you are an heir in your father’s will which has a no-contest clause, but you believe that your father was forced to sign the will under duress or undue influence. You could file the will contest and request that court the invalidate the will. Assuming the court agrees, your father’s previous will would likely be reinstated. Even if that document also had a no-contest clause, the court might consider setting the in-terrorem clause aside because you were acting in the best interest of the estate, not just for yourself.

Call a DuPage County Wills and Trusts Attorney

If you would like to discuss your options regarding a no-contest provision in your will, contact a Wheaton estate planning lawyer. Call 630-665-2500 for a confidential consultation at Stock, Carlson, Oldfield & McGrath LLC today.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104&ChapterID=60

https://www.thebalance.com/tips-for-avoiding-a-will-contest-3505204

Questions to Ask Yourself Before Starting a Business

Wheaton business lawyerDo you work hard every day so that the owner of your company or its shareholders can make a few extra dollars? Would you not be happier if your hard work allowed more money to find its way into your pocket instead—and not just because you got paid for overtime? Nearly every person who has ever had a job has given at least some thought to owning a business someday, but only a select few ever take action on those thoughts and dreams.

If you have been thinking about starting a business, there are many things to consider. Some of them are more abstract in nature while others are more concrete and logistical. For example, you should be asking yourself:

What Would My Business Do?

It is impossible to own a business without something to sell. Some businesses sell products they make themselves. Some sell products that other companies make. Some businesses sell services like accounting and tax preparation instead of products. Once you decide what you want to sell, you will need to figure out what will make your customers choose your business. This will require research to determine what needs exist in the areas you wish to serve. If your idea is much like many other businesses that already operate in a particular area, you might want to reconsider your idea—or at least your intended location.

Are You Up to It?

Working for someone else is nothing like working for yourself, especially in the early years of your new venture. Nearly all small business owners spend the first few years working long days serving customers during business hours, then managing paperwork, compliance, and other details late into the night. If something were to go wrong, you are the one that would need to address it. Do you have the skills necessary to run your own company?

What About the Intangibles?

Running a business takes passion and determination in addition to skills and ability. If you continued to work for another person, you could essentially quit at any time and start looking for a new job. While your immediate situation might suffer, you always have that option. When you open your own business, you will not have the same luxury of such freedom to decide to pursue something else. Your team, your clients, and most likely, your creditors are counting you to be open for business.

You might have all of the necessary knowledge and skill, but your commitment is a vital part of the equation. Your business has no chance unless you dedicate yourself completely to its success. This means that if you are uncertain about opening a business, you might want to wait until you are certain.

A Wheaton Business Lawyer Can Help

As you go through the decision-making process, a qualified legal professional can provide trusted guidance and helpful advice. Contact an experienced DuPage County business law attorney for a confidential consultation by calling 630-665-2500 today.

Sources:

https://www.sba.gov/starting-business/how-start-business/20-questions-starting

https://www.thebalance.com/thinking-of-starting-a-small-business-2947258

Construction Defects: Understanding Your Purchase Contract

construction defectBefore construction began on your new home, a purchase contract was established between you and the builder. The agreement specified the expectations for the construction of the home, closing of the purchase, and likely included plans or detailed specifications to be followed during the building process. What happens, however, if the builder fails to meet the terms of the contact or the home is found to have construction defects? While you may have grounds to file a lawsuit against the builder, it important to first examine your contractual agreement, as it may potentially limit your available courses of action.

Implied Warranty of Habitability

As a purchaser of new construction, you generally have the right to expect that the construction will be completed in compliance within industry standards. Illinois courts have established over time an Implied Warranty of Habitability that offers a level of protection to new home purchasers who find latent defects in the home’s construction and have no other legal recourse. The scope of the implied warranty, however, is fairly narrow and applies only to defects that make the home reasonably unsuited for its intended use.

Express Warranty Offered by the Builder

Your contract may be accompanied by a clearly-defined guarantee of workmanship and materials known as an express warranty. As a condition of this type of warranty, you may be asked to waive your rights under the Implied Warranty of Habitability. In its place, an express warranty can clearly specify all of the terms and conditions of the builder’s potential liability. It may include specific types of covered construction defects, non-covered defects, your responsibilities for maintenance, and the procedures for filing a claim. Additionally, an express warranty typically limits the timeframe in which the purchaser’s rights are guaranteed, often one year.

Binding Arbitration Requirement

It is important to read your contract and express warranty carefully and to have them reviewed by your attorney prior to agreeing to their terms. Either document may include a clause waiving your right to file suit in a jurisdictional court. Instead, if the builder fails remedy a construction defect claim made under your warranty, you may only take your case before an arbitrator. An arbitrator is a third party with industry expertise hired to resolve disputes between purchasers and builders, and is often named by the builder in the contract or express warranty. By signing such a document, you agree that the arbitrator’s decision will be binding and that avenues of additional recourse will not be available.

A DuPage County Real Estate Lawyer Can Help with Your Purchase Contract

If you considering a new construction purchase or have questions about filing a construction defect claim, contact an experienced real estate attorney in Wheaton. Our knowledgeable team can help you review contracts, negotiate terms, ensure your rights are protected throughout the process. Call 630-665-2500 for a confidential consultation today.

 

Sources:

https://www.americanbar.org/content/dam/aba/directories/construction_industry_knowledge_base/meetings/2015-annual/an15-wg-paper.pdf

http://legal-dictionary.thefreedictionary.com/Binding+arbitration