I recently read an article in Forbes about contesting a will. It gave five “tips” from a lawyer, but if you read it, two of them are about how expensive this can be, one is how it’s emotional and the other one is that most cases settle. That’s not really great information in my opinion because it really is advice that could be true for most areas of law. So I thought I’d put together a real list of what you should know about contesting a will in Illinois.
1. Let’s start with cost. Yes it can be expensive, but if the estate is worth enough money and the facts are on your side, we know lawyers who will take the case on a contingency basis which means that they only get paid if they win. Their fee is typically 1/3 of what they recover. So how much does an estate have to be worth? It depends on the case and what your share would be, but in general the lawyers we know who work on a contingency want the eventual payout to them if they win to be at least in the high five figures. So that would usually mean the estate is worth at least $500,000.00. The bigger the potential payout, the more likely you are to find a contingency lawyer.
2. Generally speaking, to contest a will you have six months from the date the will is filed with the Court to do so or you can lose your rights to ever contest it. So you need to act fast and if your relative that you are having a dispute with tells you that they will take care of everything, beware that this could just be a delaying tactic.
3. You can’t contest a will in Illinois because you don’t like that you were left out of it or you were told verbally that you were going to get something that isn’t in the will. The best claim to a will not being valid is you being able to prove some sort of fraud or that the person who died didn’t know what they were doing when they signed the will. The classic example is a will that is signed shortly before a death while the person is on medication or showing that they had severe dementia when the will was created and could not have had a lucid moment when they knew what they were doing.
4. If you are successful in getting a will thrown out, the previous valid will replaces it. If none is available then Illinois intestate laws apply. In cases of a parent death with no spouse that usually means that everything will get divided up among the children.
5. Contesting a trust is a little different because nothing has to be filed with the Court, but the same principle exists that if you believe the trust was fraudulently created, you have to act fast.
Hopefully this is more relevant to you than the Forbes article. If you have any questions or would like an attorney referral, call us at 312-346-5320 for a free consultation any time.