Can a No-Contest Clause a Prevent a Will Dispute?

no-contest, Wheaton estate planning attorneysWhen a loved one dies, the loss can be very difficult on the surviving friends and family members. The intense emotions of dealing with the loss can often make a grieving family member act in ways that would be otherwise uncharacteristic, leading to serious disputes over a variety of matters. A common point of contention is the deceased person’s will, and serious battles can affect the stability of a family for years to come, if not permanently. In an effort to prevent such issues from tearing apart your family after your death, you may wish to consider including a no-contest clause in your will.

In Terrorem Provisions

A no-contest clause is also known as an in terrorem clause, which is a Latin phrase meaning “by way of threat.” Such a clause may be included in your last will and testament to deter beneficiaries from formally contesting the will. Most no-contest provisions specify that if an heir files a contest to the will, that heir automatically forfeits the portion of the estate intended for him or her. The idea is that, if there is a threat of receiving nothing, or a nominal amount like $10 or $20, a would-be heir is not likely to push for more. It is important to understand that a no-contest clause cannot stop an heir from contesting a will; its only potential impact is to what may happen as a result.

A Challenge Is Possible Anyway

Before deciding to include a no-contest clause in your will, you should meet with an attorney to discuss your particular circumstances. In some cases, the amount intended for specific heirs might not be enough leverage for such a clause to serve as an effective deterrent. For example, if you have a large number of beneficiaries each set to inherit $1,000, an heir might be willing to gamble with that amount to try an obtain a larger inheritance. If the original amount is $100,000, an in terrorem provision may be more effective.

Concerns in Illinois

The law concerning the enforcement of no-contest clauses is rather vague in the state of Illinois. At least one court has set aside a no-contest provision on the grounds that the will contest was filed in good faith on the part of the heir. However, by closely with an attorney and employing the proper language in your will, you will be more likely to ensure that your wishes are carried out regarding your estate.

Contact a Wheaton Estate Administration Lawyer

If you are listed as an heir in a will with a no-contest clause, but you have reason to believe the will was not properly executed, contact an experienced DuPage County probate law attorney. We will review your case and help you identify your best option under the law. Call Stock, Carlson & Duff LLC at 630-665-2500 today to schedule an appointment and get the representation you need during a difficult time.

 

Sources:

http://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500050HArt.+VIII&ActID=2104&ChapterID=60&SeqStart=10100000&SeqEnd=10400000

http://www.actec.org/assets/1/6/State_Laws_No_Contest_Clauses_-_Chart.pdf

Choosing an Executor for Your Estate

executorEstate planning is arguably one of the most important things a person will do during their entire life, and as such, everything matters. The slightest discrepancy may be attacked, and your wishes may not be honored if your estate is not set up and administered properly. Perhaps the most important choice you must make while estate planning is picking your executor, who can ensure that your wishes are carried out as you prefer and act on your behalf.

Responsibilities of an Executor

A person who has been named executor in Illinois has 30 days following the death of the testator in which to either submit the will for probate or refuse the appointment. The responsibility of managing another’s estate is significant, and with that in mind, it is important to pick the right person. The instinct for many is to choose their spouse, but this is not always the best choice, especially if you are of similar ages. He or she may be elderly and/or ill when the time comes for them to assume the role.

Whomever you choose must be able to fulfill all of the duties of the office. These include:

  • Informing the relevant authorities and your creditors of your passing, and in some instances, your family;
  • Paying any outstanding debts incurred in your lifetime by you or your estate;
  • Ensuring your spouse’s or family’s well-being until the estate is settled (i.e. paying rent or mortgage payments, bills, etc.);
  • Paying estate taxes;
  • Hiring the right attorney to help probate the estate; and
  • Dealing with any questions or concerns of putative beneficiaries during the process.

Generally speaking, an executor has a fiduciary duty to act appropriately toward all involved parties while safeguarding the assets of the estate.

Who Can Serve as Executor?

An executor has responsibilities that may last years and be quite complex in nature. Illinois, like many other states, does have restrictions on who may serve, though there are not as many as there are elsewhere. To serve as an executor, a person must be over the age of 18, a U.S. resident (not necessarily a citizen), and they must not have been judged to be incapacitated in any way by a court. They must also be free of any condition that would require guardianship.

It is recommended that you choose an executor who lives near you, but it is not absolutely required. However, you should be aware that if you do choose an out-of-state executor, they may be asked to post a bond by the probate court, so as to increase the chances of their successful oversight of the estate.

A Wheaton Wills and Trusts Attorney Can Help

If you are confused or conflicted about who to choose as your executor, you are not alone. The best solution for most is to consult an experienced estate planning attorney. Contact one of our knowledgeable DuPage County estate planning lawyers to discuss your situation today. Call 630-665-2500 and schedule a confidential consultation at Stock, Carlson & Duff LLC.

 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2104&ChapterID=60&SeqStart=7200000&SeqEnd=9400000

http://ilga.gov/legislation/ilcs/documents/075500050K6-13.htm

Nursing Homes Using Guardianship over Residents for Bill Collection

nursing homes using guardianship, Wheaton Estate Planning LawyerA recent report in The New York Times should serve to reinforce just how crucial it is for people to have estate planning documents in place while they are still healthy and able to make decisions for themselves, including a health care power of attorney and a financial power of attorney.

According to the report, several nursing homes are using the legal tactic of seeking guardianship over residents in an effort to gain control of the residents' finances, essentially using the guardianship petition as a method of bill collection.

Although laws do allow for nursing homes to file for guardianship in cases where a resident is incapacitated and is either being taken advantage of financially by other relatives, or where there are no relatives or anyone else appointed to protect the person's interest, the report cites case after case where nursing homes filed petitions for guardianship, but with no reason—the facility was trying to gain control of a resident's money.

In one documented case, a 95-year-old woman, who had savings of $240,000, was placed in a nursing home after being in a rehabilitation center for treatment because there had been a fire at her apartment and she was unable to go home. The woman did not have any relatives. At one point, her physician declared that she was not competent to make financial decisions. However, the nursing home in which she resided ignored her physician and told the woman that she needed to give them a check for $50,000, which she did. It was not until sometime later, when the woman refused to write any more checks to the nursing home, did the nursing home apply for guardianship. The judge who oversaw the guardianship case appointed a third-party as guardian and instructed the guardian to investigate and proceed with possible criminal charges against the nursing home for financially exploiting the woman.

In Illinois, residents of nursing homes are protected under the Nursing Home Care Act. Under the law, "a resident shall be permitted to manage his own financial affairs." This law also applies to residents who have already appointed someone as legal guardian, or at the very least, has given someone power of attorney to manage their affairs.

If you have yet to sit down and make plans for your future, it is essential that you contact an experienced Wheaton estate planning attorney to help ensure that your assets are protected in the event you become incapacitated. Make sure you are the one who gets to decide who should have legal control over your medical, personal, and financial care. Call 630-665-2500 today.