Using No Contest Clauses To Prevent Contested Estates

Using No Contest Clauses To Prevent Contested Estates

Provided By: Alan G. Orlowsky

While most of us expect a peaceful, timely, and harmonious allocation of our estate upon our passing, there may arise situations where the beneficiaries of our estate may feel jilted. Sometimes, these hard feeling may result in litigious action that can spiral into a full-blown family feud.

Fortunately, Illinois is one of many states that allow individuals to craft their last will and testament with a no-contest clause to try and prevent legal challenges to the will in probate court. However, these types of clauses may not be for everyone, as they may suggest to heirs and beneficiaries a lack of trust when it come time to division of the estate.

Notwithstanding the concerns over no contest clauses, they can nonetheless be useful to prevent protracted legal battles over an estate. However, while Illinois enforces no contest clauses in wills, petitioners may still be able to recover their portion of an estate if the claim was brought in good faith.

How do no contest clauses work?

The essence of a no contest clause prevents a beneficiary from recovering any of his or her portion of an estate if that individual attempts to contest the estate. For example, if someone was left one-third of an estate, but unsuccessfully contested the will demanding one-half of the estate, that beneficiary would not even be allocated the original one-third.

In Illinois, a good faith challenge to an estate would not bar the beneficiary from recovering any of the estate. A good faith challenge to a will may involve evidence the deceased was taken advantage of by an executor while creating a will or even allege a complete or partial forgery of the will. Ultimately, it is up to the courts to decide whether the challenge was made in good faith or not.

Can I still attempt to remove an executor from an estate even if there is a no-contest clause in will?

It still may be possible to remove an executor from an estate if the will retained a no-contest clause since the petitioner would not challenge the validity of the will but rather the competence of the individual responsible for its execution. Reasons to remove an executor from an estate can range from failing to comply with the orders of the probate courts or will, using the estate for personal benefits, or general gross mismanagement of the estate.

While no-contest clauses may prevent disagreements over how one’s estate is allocated, it may not be able to prevent further strife amongst disgruntled beneficiaries. Furthermore, since these types of clauses deal with beneficiaries named in a will, they may not be able to deter outside parties claiming standing to contest a will from doing so.

Glenview estate planning attorneys

For help planning your estate, contact the Glenview estate planning attorneys of Orlowsky & Wilson for a consultation about your case. Our office has years of experience helping clients prepare their estate by crafting the right will and testament for each individual.

 

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