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

What Happens to an Illinois Estate When There is No Will?

Illinois estate, no will, DuPage County Estate Planning AttorneyDrawing up a will is something that most people know they should do. However, for one reason or another, many never get around to doing it. Moreover, when they die, it often leaves major legal issues for their loved ones to sort out.

When a person dies without a will, it is referred to as intestate. We hear story after story about families locked in major battles over a family member's estate, which often results in a manner that the deceased person would not have wanted. The only legal choice, however, is the one made by the court because there was no will.

This is the case with the estate of the late granddaughter of actor Morgan Freeman. Last August, the 33-year-old woman was stabbed to death. Her estate included a condo, worth approximately $800,000, that Freeman had purchased. When the young woman was murdered, she was not married, nor did she have any children or siblings. She also died intestate. According to New York law, where the young woman lived, her estate will go to her mother and father because she did not have a will.

However, according to an affidavit filed by Freeman in an attempt to bar the girl's father from inheriting anything, his granddaughter had only seen her father a handful of times in the past 30 years. Additionally, it is noted that the father had not contributed any financial support as the young woman was growing up, and was nothing more than a “deadbeat dad.”

If Freeman's granddaughter had lived in Illinois at the time of her murder, the same scenario would apply. When a person dies intestate, the rules in this state are as follows:

  • If the deceased had children but no spouse, the children will inherit the entire estate;
  • If the deceased had a spouse but no children, the spouse inherits the entire estate;
  • If the deceased had a spouse and children, the spouse inherits half of the estate and the children inherit the other half;
  • If the deceased had parents, but no spouse, children, or siblings, the parents inherit the entire estate;
  • If the deceased had siblings, but no spouse, children, or parents, the siblings inherit the entire estate; and
  • If the deceased had parents and siblings, the parents and siblings all inherit equal shares of the estate. If only one parent is living, however, then that parent inherits a double share.

The tragedy of the murder of Morgan Freeman's granddaughter is made more tragic because her family has to engage in a legal battle against her estranged father because there was no will. This case highlights that a person is never too young nor too old to have a will. If you need assistance with a will, contact an experienced DuPage County estate planning attorney today.

Sources:

http://www.dailymail.co.uk/news/article-3325791/Morgan-Freeman-trying-stop-deadbeat-dad-slain-granddaughter-inheriting-781-000-NYC-apartment-received-actor.html

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2104&ChapterID=60&SeqStart=3700000&SeqEnd=5000000

3 Common Questions and Concerns about Estate Planning

concerns about estate planning, estate planning concerns, estate planning questions, Illinois trusts and wills attorney, my estate plan, start estate planningEstate planning can be a highly involved process; however, it is an incredibly important financial step. While most people do not want to face the concept of securing assets before they die, estate planning helps ensure that family members do not suffer stress when it comes to dividing inheritance. If you are considering estate planning, you probably have several questions or concerns.

Is Estate Planning for Me?

One of the most common concerns for those interested in estate planning or writing a will is whether or not such preparations necessarily apply to them. Many believe, erroneously, that proper estate planning is only pertinent to the wealthy.

Estate planning is for everyone. It does not matter whether or not a person is wealthy. Anyone who has a desire to see their assets—extensive or not—go into the right hands after death should write a will and make all necessary legal arrangements.

According to Forbes, proper estate planning avoids the headache of having a state unnecessarily become involved after one’s death. The process also addresses other concerns such as arranging the funeral, establishing guardians for any minor children, and distributing inheritance.

When is the Best Time to Get Involved in Estate Planning?

Ideally, everyone who is legally allowed to own property should invest some time and money in estate planning. Many people wisely begin the process as early as age 18.

Since everyone’s case is unique, it is often very beneficial to consult an attorney about one’s personal assets and estate planning. Having a legal expert available to review a specific situation can help sort out any confusion.

What Should I Include in My Estate Plan?

Some people put off or avoid estate planning completely because they believe their finances and assets are not complex or elaborate enough. Many legal experts will agree: Most people are not completely aware of the intricacy of their own financial situation.

While various expected areas—property, stocks, bank accounts, etc.—are commonly thought of when it comes to financial planning, it is also important to consider digital or intangible assets. Even pets are an important part of a thorough estate plan.

Consult an Illinois Trusts and Wills Attorney

If you have questions or concerns about estate planning, and are interested in speaking with an Illinois trusts and wills attorney, consider Stock, Carlson, Flynn & McGrath, LLC. We are more than happy to sit down with you to discuss your plans and intentions for your assets. Call us today at 630-665-2500.