Under Illinois law, if you die and have a will (or die without a will or trust), the process of legally transferring your assets is called probate. Now there are a lot of exceptions such as what happens when you have hardly any assets at all or nobody wants to make a claim to inherit your property because you had so much debt. For the purposes of this blog post, we are going to assume that the person who died had a will, a house, bank accounts and other assets with no debt. The question is, if they had a will, who can challenge it?
Theoretically, anyone can contest an Illinois will. If on your deathbed you changed your will from everything going to your neighbor to everything going to your cousin, your neighbor could contest the new will as not being valid and try to get the old one enforced.
Realistically speaking, it’s usually relatives who are contesting a will. A common scenario is that an older person has a will that leaves everything equally to all three of their kids. They get sick or have dementia and at a time when it can be argued that they don’t know what they are doing, they leave everything to just one child or a caretaker or someone else. In a situation like that you will see the kids who got cut off filing a will contest.
Another common scenario is when a child from one marriage is not left anything. This often happens when they weren’t a part of their parent’s life. If the will leaves everything to all surviving children, they will have the ability to say that they are part of that group. One way to prevent this from happening is to specifically mention them and make clear you are leaving them nothing or leave a nominal amount so you can show that you thought about them.
A big hurdle in contesting a will is making sure that it’s financially worth it to do so. If someone died with a house worth $125,000, about $75,000 in debt and they had seven kids, that means there’s about $50,000 to divide amongst seven kids, before court costs are taken in to account. So essentially if you were to challenge that will, your interest at best would be around $7,000 which means you’d spend more money than the case is worth.
You can find a lawyer who will only get paid if they win to challenge a will if the estate and your interest in it is large enough. In other words, we’ve been able to help people whose relatives died and had a will illegally changed where the estate was worth seven figures and their interest in it was in the high six figures or low seven figures or more. If you can make a strong case to overturn the will and it’s a large estate, there are very good Illinois lawyers who will take the case on in a way where they don’t ask you for any money to file a lawsuit.
In sum, you can challenge a will if you had a legal interest in it either from being a spouse, blood relative or someone who was mentioned in a previous will that you have a copy of. Note that Illinois does not have common law marriage. In other words, if your long time partner dies and either doesn’t mention you in a will or never had one, there’s not likely much any attorney can do for you.
These are not easy cases and require a decent amount of investigation. If you’d like to have a free consultation with an attorney to determine if a will contest is possible for you, please call us any time at 312-346-5320.