If you are going to make estate planning decisions that will upset one of your children or someone else that is expecting an inheritance, an estate contest should be anticipated.
Fortunately, there are steps you can take in advance to prevent a challenge, and we will take a look at them here.
Put a Plan in Place
The vast majority of adults in the United States do not have estate plans in place, even though most of the unprepared individuals know that planning is important. They procrastinate for one reason or another, and if you are in this group, you are taking a considerable risk.
We all know about the average lifespan, but people pass away before their time each and every day. If you die intestate, the probate court would preside over the case, and the assets would eventually be distributed under the intestate succession laws of the state of Illinois.
This may not be completely catastrophic if the situation is simple and straightforward and everyone in the family is on the same page. However, if there are conflicts, the proceedings can be contentious and messy.
There is no reason to go through life without an estate plan as a responsible adult when qualified estate planning assistance is just a phone call or email away.
Use a No-Contest Clause
A no-contest or in terrorem clause can be included in a will or trust. It would trigger the disinheritance of anyone that is named as an inheritor that challenges the terms.
Would a person that you are slighting be willing to take that risk? One thing is for sure: the size of the inheritance would certainly have something to do with it. This is something to keep in mind when you are making your decisions.
Use a Living Trust to Avoid Probate
If you utilize a will as the centerpiece of your estate plan, the executor that you name in the document would not be able to act independently. They would admit the will to probate, and the court would preside over the administration process.
The situation would not be nebulous with regard to the rightful inheritors, so it would not be akin to an intestacy case. This being stated, it is easy to challenge the terms of a will, because there is a proving of the will during probate.
On the other hand, if you transfer your assets through the terms of a revocable living trust, the trustee that you empower would distribute the assets to the beneficiaries outside of probate.
A disgruntled party could file a lawsuit to challenge the terms, but there would be a disincentive in the form of the no-contest clause. Plus, there would be attorney fees to pay, and the process is more complex, so a trust is a better choice if you are concerned about a potential challenge.
In addition to this benefit, you would act as the trustee while you are living, so you would maintain control of the assets. You can include spendthrift protections, and the estate administration process is streamlined in a general sense because asset ownership would be consolidated.
Review Your Plan With an Attorney
An estate challenge is going to be based on the contention that the choices that have been recorded do not reflect your true wishes for one reason or another. The possible grounds are fraud, undue coercion, incapacity, and improper execution.
If you pass away after ignoring your plan for decades, someone could contend that your thinking changed over the years. However, this would not be a very strong argument if you visit your attorney on an annual or semiannual basis to keep your estate plan up-to-date.
We Are Here to Help!
As you can see, there are details to take into consideration when you are devising your estate plan, and each situation is unique. There are different approaches that can be taken, and the ideal course of action will depend on the circumstances.
When you choose our firm, we will make you feel comfortable from the start, and you will receive personalized attention. At the end of the process, you will walk away with a custom crafted plan that ideally suits your needs.
If you are ready to get started, you can schedule an appointment at our Naperville or North Aurora, Illinois estate planning office if you call us at 630-568-8611. There is also a contact form on this site you can use if you would prefer to send us a message.
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