Tag: Probate

Have You Looked at Your Estate Plan Documents Lately?

Does this sound familiar?

“John and Mary kept delaying any discussions about preparing estate planning. After they had their first child, Jack, they finally decided it was time to discuss their estate plan with a lawyer. They set up a trust for Jack if anything happened to John and Mary and designated John’s parents, who were then 65, as Jack’s guardian and the trustee of the trust. Since they had meager assets, they left everything outright to him at age 25. John and Mary ignored these documents and made none of the transfers recommended by their lawyer to avoid probate.

Ten years passed by. They now have three children, Jack, (10) Jackie (7) and Maureen (4). Jack’s parents have moved away to enjoy warmer climates.

John and Mary should revisit their estate planning desires. Are his parents still capable of raising their children? When Maureen is 16, Jack’s parents will be 87. Have Jack and Mary considered planning possibilities for their digital assets? What about their business? Can it operate after they are no longer able to manage it? Are their children able to handle their inheritance as originally planned? Are John and Mary’s health care powers and living will directions up-to-date? Have they considered the effect that taxes and probate might have on their plan? Are there any other special circumstances they need to plan for?

We recommend you review your estate plan every 2-3 years or more often based upon your changes in family and your finances. Isn’t it time you reviewed your estate plan??

To discuss any questions you have regarding your estate plan or for a complimentary estate plan review, please contact:

Morris Saunders at:

msaunders@lgattorneys.com or (312) 368-0100.

Time is of the Essence When Challenging the Validity of a Will

An interested party has six months from the date a will is admitted into probate to challenge the validity of the will.  This deadline is set by statute is strictly enforced. See 755 ILCS 5/81(a) (West 2010).  Regardless of whether the will is being challenged for undue influence, lack of capacity, fraud, forgery, or revocation, the will must be challenged within six months of admission.

The First District Appellate Court upheld the dismissal of a will contest where a party had leave of Court to file a will contest, but did so four days after the sixth month will contest deadline.  In re Estate of Mohr, 357 Ill. App. 3d 1011, 1015, 830 N.E.2d 810, 813 (1st Dist. 2005).  After the sixth month window has passed, the court no longer has jurisdiction to hear the will contest. Id. This approach provides a level of certainty to the probate process but harshly penalizes those who do not act quickly.

There are precious few exceptions to this rule and most of the exceptions involve mistakes in the form of the will contest.  E.g. Filing in wrong division was curable after the six month expiration, as was misnomer of one of the parties. In re Estate of Howell, 867 N.E.2d 559, 561, (5th Dist. 2007); In re Estate of Morgan, 2015 IL App (3d) 140176-U.

However, even after six months have passed, all is not necessarily lost.  Certain related tort claims can be filed after the six month expiration where the will contest remedy was not available.  A tort claim for intentional interference with inheritance is where:

“[o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” Restatement (Second) of Torts § 774B (1979).

This claim might be actionable where the executor of the admitted will intentionally hid the admission of the will from one of the interested parties, so long as the admitted will deprived the aggrieved party of some part of his or her inheritance.

The Illinois Supreme Court has twice held that these claims may be pursued after the closure of the six month will contest deadline under certain circumstances.  In re Estate of Ellis, 236 Ill. 2d 45, 52, 923 N.E.2d 237, 241 (Ill. 2009); Bjork v. O’Meara, 2013 IL 114044, 986 N.E.2d 626 (Ill. 2013).  While the tort claim would not disturb the validity of the will, it would provide a right to sue the executor under the will for monies the interested party would have received, but for the admission of the improper will.  Under this tort action, key questions will include: was the will contest remedy available to the aggrieved party during the six month window; and would the will contest have fully compensated the aggrieved party if it had been timely filed.

Rather than shoehorning a will contest into a tort claim, an interested party who believes that a will is improper should act quickly to protect his or her rights.

If you have any questions regarding will contests or intentional interference with inheritance, please contact:

Robert Cooper at:

rcooper@lgattorneys.com or (312) 368 0100.

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