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, Oldfield & McGrath 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

Not Updating Your Estate Plan After a Divorce Can Put Your Heirs at Risk

Illinois wills and trusts attorneysIf you have an estate plan in place, congratulations! You are already doing better than most Americans. Estate planning documents are not evergreen, however. Instead, the guarantor must review them regularly and update them whenever a significant change occurs. Perhaps the most overlooked (and potentially devastating) issue is that of divorce. Learn more about how not updating your estate plan after a divorce can put your heirs at risk, and discover how our seasoned Wheaton wills and trusts lawyers can help set things right again. 

Divorce and Your Estate Planning Documents

During a divorce, marital assets are divided and then distributed, which can drastically affect the value of your estate. As such, the exact details of your will or trust may change. There may be less to distribute to your heirs, or perhaps some specific assets went to your ex-spouse. In either case, your estate plan must be updated to reflect these changes in your net worth. Furthermore, you must practice due diligence to ensure that an oversight does not occur. For example, your divorce decree may state that your spouse is no longer entitled to any of your retirement pension plan, but if you do not change the designated beneficiary and you pass away unexpectedly, the money could still go to your ex-spouse, rather than the intended heirs. 

Updating Your Estate Plan After an Illinois Divorce

People often put off updating their estate plan after a divorce – perhaps because they have a new lease on life and do not fear being affected by the potential consequences of doing so. Yet, every day, tragic and unexpected events occur. Protect your heirs from mishaps by ensuring you update your estate plan as soon as your divorce has been finalized. Areas to focus your attention include:

Your healthcare proxy. While there are some divorced parties who may trust their ex-spouse to continue acting as their healthcare proxy, this is a pretty rare occurrence. Ensure that someone you care about and trust is put in charge of your medical decisions, should an accident occur, by taking the time to name a new healthcare proxy in your estate plan;

Your power of attorney. Just as you may not trust your ex-spouse to make decisions regarding your life, you may not want to trust them with your finances after a divorce has occurred. 

Your designated beneficiaries. While, in most cases, your will or living trust will dictate how assets are distributed upon your death, certain assets, such as pension plans and retirement accounts, cannot be overruled by an estate plan. Instead, the policy goes to the named beneficiary. Avoid wrongful disbursement by ensuring you update your beneficiaries. 

Guardianship of any minor children. While, usually, children will go to the other parent if one passes away, there are scenarios in which this option may not be appropriate (i.e. abuse or neglect). Furthermore, there is always the chance that you and your ex-spouse’s deaths will occur in-tandem. If this happens, the courts may struggle to determine who has rightful guardianship over your children (this could be especially true if your spouse has also named possible guardians in their own estate plan). Whatever your scenario, protect your children by ensuring that guardianship is considered and updated accordingly after your divorce. Also, be sure to update the trustee if you have a trust account for your children. 

How Our Wheaton Estate Planning Lawyers Can Help 

For most people, divorce signifies the start of a happier, more fulfilled life. The last thing you want to worry about is the possibility of your death. Stock, Carlson, Oldfield & McGrath, LLC can help. Backed by more than 40 years of legal experience, our DuPage County wills and trusts lawyers can examine your documents and assist you in making whatever changes are necessary. Call 630-665-2500 to schedule your consultation today. 

Source:

https://www.forbes.com/sites/christinefletcher/2019/01/08/9-things-you-need-to-know-about-estate-planning-after-divorce/#67dcac783e31

 

Wills and Trusts – Understanding the Difference and Why It Matters

DuPage County wills and trusts lawyersIt can take decades to build wealth, so it only makes sense for guarantors to want a say over how their assets will be distributed upon their death. Wills and estate plans are valuable estate planning tools that can allow you to do just that. There are some distinct differences between these two options, however, and a variety of factors can dictate which option is most appropriate for your situation. Learn more, including how our seasoned estate planning lawyers can help protect your heirs, and your estate, immediately and long into the future. 

What is a Will? 

A will is a written document that explains how a guarantor’s assets should be distributed, upon their death. A guarantor can retract or amend a will at any point in their lifetime, and an update is recommended any time that a guarantor experiences a significant change in their situation (i.e. marriage, divorce, children, etc.). Wills can also be used to name guardians for minor children. 

What is a Living Trust? 

Living trusts are meant to designate control over a guarantor’s assets. You can name yourself, but most guarantors assign a trustee to their estate. The trustee would have the power to manage any assets to which they have been assigned, should you become incapacitated. Living trusts can also  reduce the tax-load of an estate, and it allows heirs to avoid the probate process (in most situations). Another distinct benefit of a living trust is the anonymity that it grants your heirs; under this document, your financial affairs remain a private matter. 

Which Estate Planning Tool is Right for You?

Living trusts allow guarantor’s the most control over their assets, even after death, but they are not appropriate for every situation. Often costly and typically complex, these documents are generally reserved for more complex estate planning situations. Examples include an estate with:

  • A significant tax-load; 
  • Multiple heirs;
  • Minor children that must be supported until they come of age;
  • Children, grandchildren, or other dependents with special needs;
  • Heirs who poorly manage money; and
  • Assets or property that should be maintained or held within the family.

Because no two situations are exactly alike, and the estate planning process is complex and multi-layered, it is advised that guarantors seek skilled legal guidance when determining which estate planning tools are best suited for their needs. Stock, Carlson, Oldfield & McGrath, LLC is the firm to trust. Our experienced Wheaton wills and trusts lawyers offer more than 40 years of estate planning experience. Call 630-665-2500 for your consultation. 

Source:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2117&ChapterID=61