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

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