Should I Include a No-Contest Clause in My Will?

no-contest, Wheaton estate planning attorneysThere are a number of reasons that a will or other estate planning document may be invalid. If the testator was not of sound mind due to dementia or another health condition when he or she created the will, for example, the will may not represent the testator’s true wishes. If a testator was coerced or tricked into the provisions contained in his or her will, it is also invalid. If a loved one has reason to believe that the directions contained in a deceased person’s will should not be followed, they may contest the will in court. Unfortunately, some beneficiaries may contest a will simply because they do not like the instructions contained within the will. If you are concerned that someone may challenge the validity of your will after you pass away, you may want to consider adding a “no-contest” clause.

Basics of No-Contest Clauses

There is no way to completely prevent your will from being challenged after your death. However, you can discourage beneficiaries from challenging it. A no-contest clause is a provision in a will or trust that establishes certain “penalties” if a beneficiary challenges the validity of the will or trust. For example, perhaps you are worried that one of your children will be unhappy with his or her share of your estate. You worry that he or she will contest the validity of your will in an attempt to have the will thrown out. You could include a no-contest clause that states that if a beneficiary disputes the validity of your will and loses, he or she will lose part or all of the inheritance assigned to him or her. The possibility of losing a significant inheritance can make a beneficiary think twice before challenging your will.

Limitations of an Illinois No-Contest Clause

It is important to note that a no-contest clause cannot guarantee that your will may not be contested. A beneficiary may still choose to challenge the will even at the risk of losing his or her inheritance. If the will is found to be invalid, the directions contained within the will may be disregarded and your estate may instead be distributed according to intestate law. A no-contest clause also does not discourage people who are not named as beneficiaries from challenging the will. The best way to prevent your will from being successfully challenged is to work with an experienced estate planning attorney who can ensure the validity of your will.

Contact a DuPage County Estate Planning Lawyer

To learn more about no-contest clauses as well as other estate planning options, contact Stock, Carlson & Duff LLC. Call us at today at 630-665-2500 to schedule a confidential consultation with and experienced Wheaton estate planning attorney.

 

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500050HArt%2E+VIII&ActID=2104&ChapterID=0&SeqStart=10100000&SeqEnd=10400000

On What Grounds Can a Will Be Contested?

contested, DuPage County estate planning lawyersOne of the most critical reasons it is important to work with a lawyer when drafting a will is that a will can be formally challenged, or contested, if it does not meet certain criteria. If a will is successfully challenged, then some or all of the directions for property distribution contained within the will are rejected. Instead, the testator’s property is distributed according to state law. An individual cannot contest a will simply because he or she considers it to be unfair or is unhappy with his or her share of the inheritance. Read on to learn about the grounds or reasons that a person may contest a will in Illinois.

Lack of Testamentary Capacity

“Testamentary capacity” refers to person’s cognitive abilities. A testator must be of sound mind in order to legally approve of the terms contained within his or her will. If a person lacked testamentary capacity when he or she agreed to the will, the will may be considered invalid. If a person suffers from Alzheimer’s disease, dementia, or another cognitive health issue and wishes to draft an estate plan, he or she should seek legal guidance from an experienced lawyer so that steps can be taken to prevent his or her will from being contested in the future.

Undue Influence

In order for a will to be valid, the testator must have freely and voluntarily agreed to the terms contained within the will. If the testator was coerced, tricked, or manipulated into agreeing to the provisions in his or her will, the will is not valid. Undue influence is often a concern when a particular person has virtually unlimited access to an aging or ill testator.

For example, one section of the Illinois Probate Act deals with suspicious property transfers to non-related caregivers. If an individual leaves more than $20,000 to a non-related caregiver, such as a home health aid, this transfer is presumed to be void. If the will or other property transfer instrument is challenged in court, the caretaker is obligated to prove to the court that the transfer was not the result of fraud or undue influence.  

Fraud and Forgery

If a will is created through fraud, the will is not valid. One example of fraud occurs when a beneficiary lies to the testator in order to get the testator to increase his or her inheritance. Another example of fraud occurs when a beneficiary forges the testator’s signature or changes the contents in the will without the testator’s consent. It can be very difficult to prove a will was affected by fraud once the testator has passed away. Contesting a will based on fraud will require help from a skilled attorney.

Contact a Wheaton Will Contest Attorney

If you have reason to believe that your loved one’s will is invalid or you wish to draft your will, trust, or other estate plan, the skilled DuPage County estate planning lawyers at Stock, Carlson & Duff LLC can help. Call our office at 630-665-2500 and schedule a confidential consultation to discuss your needs today.

 

Sources:

http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-1093

https://www.thebalance.com/what-are-the-grounds-for-contesting-a-will-3505208

The Many Benefits of Drafting a Living Will

living will, DuPage County estate planning lawyersA living will is a type of advance health care directive that allows a person to make decisions ahead of time about their wishes regarding medical treatments and end of life care. It is not a pleasant thought to have, but have you ever wondered what would happen if you were incapacitated and could not express your wishes regarding the type of medical care you do and do not want to undergo? For example, if a serious car accident leaves you in a permanent vegetative state, would you want to be kept alive via a ventilator? It can be very emotionally taxing to make the decisions contained in a living will, however, doing so means that your surviving loved ones will not have to make these decisions on your behalf.

A Living Will Lets You Make Decisions About Your Future Medical Care

In a living will, you describe the medical treatments you do and do not want to receive if you become incapacitated and cannot specify this information yourself. Medical treatments commonly discussed in a living will include dialysis, mechanical ventilation, cardiopulmonary resuscitation (CPR), tube feeding, antibiotics and antiviral medications, and palliative care. You will also be able to dictate if you would want to be allowed to spend your last days at home. Many people have strong feelings about organ, tissue, or body donation. In your living will, you can specify that you only wish to be kept on life-sustaining machines for the purposes of organ donation. If you wish to donate your body to a university or other donation program, you will also be able to specify this in your living will, as well as in other estate planning documents.

Your Loved Ones Will Not Be Burdened With Making Your Medical Decisions

Extensive legal battles can result from family members that disagree about an incapacitated loved one’s medical care. Many people remember the events surrounding the death of Terri Schiavo in 2005. The young woman had suffered severe brain damage and was not expected to ever recover from a persistent vegetative state. Her husband wanted her feeding tube removed so that she could pass away, but her parents fought aggressively to keep her alive. Disagreements like these can be avoided when an individual has a living will. Instead of family members having to guess what type of end-of-life care you would have wanted, they will be able to follow your directions.

Contact a DuPage County Living Will Lawyer

By taking the time now to develop a living will, you can save your loved ones a great deal of stress and anxiety in the event of a tragedy. For help deciding what types of estate planning documents best fit your needs, assistance with drafting a living will, and more, contact a Wheaton estate planning attorney at the law firm of Stock, Carlson & Duff LLC. Call 630-665-2500 to schedule an initial consultation.

 

Sources:

https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303

https://time.com/3763521/terri-schiavo-right-to-die-brittany-maynard/