How Do I Defend A Contested Will?

How Do I Defend A Contested Will?

Provided By: Alan G. Orlowsky

In Illinois, the executor of an estate has a legal obligation to defend the will in the event it is contested by parties who believe they have a financial standing in its execution. Whether the petitioners of the contest are beneficiaries named in the will, heirs of the deceased, or outside parties not mentioned in the estate, you may have to fight hard to ensure the final wishes of the deceased are properly executed and beneficiaries receive their share.

Depending on the jurisdiction of the probate court, the executor will need to appear in person with his or her attorney and defend the will and perhaps even appeal a decision that invalidates the document. If the executor fails to appear in probate court or refuses to defend the will, the probate judge may replace the executor to administer and defend the estate.

Does it cost money to defend a will?

In most cases, the legal fees associated with the defense of an estate may come from its assets, if it has the capacity to do so. However, there may be other instances where the executor may need to utilize his or her own finances to defend the will from creditors or petitioners seeking a claim to the estate.

  • Formal proof of will contests – These are usually claims revolving around fraud or forgery of a will. In these cases, an executor may be removed from executing a will and his or her ability to recover funds for the defense of the will may be taken away.
  • Will contest – Petitioners may claim an undue influence causes the deceased to create an unfair will because the individual was taken advantage of. Executors who successfully defend these petitions may be paid to do so from the estate.

Can I challenge a will if I am the executor of the estate?

There may be scenarios where an individual may be named an executor of a will yet decide to challenge the allocation of the estate amongst the beneficiaries. Instances like these open up an entire nebula of legal gray areas since the executor owes a duty to defend the estate from challenges, even from themselves.

In these scenarios, the advice and counsel of an experienced Glencoe estate attorney becomes extremely important. Depending on the circumstances, it may be necessary for the executor contesting the estate to ask the probate court to file for petition of administration of the estate to allow a court appointed executor to take charge of the will. However, every situation may be different and individuals in these types of situations should weigh their options carefully before proceeding.

Glencoe contested estate lawyers

For a consultation about defending a will, contact Orlowsky & Wilson for a legal consultation with one of our experienced Glencoe contested estate lawyers. Our attorneys have years of experience helping clients through legal challenges to estates and will work hard to ensure these matters are handled properly. Our office serves clients throughout Northbrook, Evanston, Skokie, Glenview, Glencoe, and Highland Park.



Updated as of July 2019
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