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contested, DuPage County estate planning lawyersOne of the most critical reasons it is important to work with a lawyer when drafting a will is that a will can be formally challenged, or contested, if it does not meet certain criteria. If a will is successfully challenged, then some or all of the directions for property distribution contained within the will are rejected. Instead, the testator’s property is distributed according to state law. An individual cannot contest a will simply because he or she considers it to be unfair or is unhappy with his or her share of the inheritance. Read on to learn about the grounds or reasons that a person may contest a will in Illinois.

Lack of Testamentary Capacity

“Testamentary capacity” refers to person’s cognitive abilities. A testator must be of sound mind in order to legally approve of the terms contained within his or her will. If a person lacked testamentary capacity when he or she agreed to the will, the will may be considered invalid. If a person suffers from Alzheimer’s disease, dementia, or another cognitive health issue and wishes to draft an estate plan, he or she should seek legal guidance from an experienced lawyer so that steps can be taken to prevent his or her will from being contested in the future.

Undue Influence

In order for a will to be valid, the testator must have freely and voluntarily agreed to the terms contained within the will. If the testator was coerced, tricked, or manipulated into agreeing to the provisions in his or her will, the will is not valid. Undue influence is often a concern when a particular person has virtually unlimited access to an aging or ill testator.

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living will, DuPage County estate planning lawyersA living will is a type of advance health care directive that allows a person to make decisions ahead of time about their wishes regarding medical treatments and end of life care. It is not a pleasant thought to have, but have you ever wondered what would happen if you were incapacitated and could not express your wishes regarding the type of medical care you do and do not want to undergo? For example, if a serious car accident leaves you in a permanent vegetative state, would you want to be kept alive via a ventilator? It can be very emotionally taxing to make the decisions contained in a living will, however, doing so means that your surviving loved ones will not have to make these decisions on your behalf.

A Living Will Lets You Make Decisions About Your Future Medical Care

In a living will, you describe the medical treatments you do and do not want to receive if you become incapacitated and cannot specify this information yourself. Medical treatments commonly discussed in a living will include dialysis, mechanical ventilation, cardiopulmonary resuscitation (CPR), tube feeding, antibiotics and antiviral medications, and palliative care. You will also be able to dictate if you would want to be allowed to spend your last days at home. Many people have strong feelings about organ, tissue, or body donation. In your living will, you can specify that you only wish to be kept on life-sustaining machines for the purposes of organ donation. If you wish to donate your body to a university or other donation program, you will also be able to specify this in your living will, as well as in other estate planning documents.

Your Loved Ones Will Not Be Burdened With Making Your Medical Decisions

Extensive legal battles can result from family members that disagree about an incapacitated loved one’s medical care. Many people remember the events surrounding the death of Terri Schiavo in 2005. The young woman had suffered severe brain damage and was not expected to ever recover from a persistent vegetative state. Her husband wanted her feeding tube removed so that she could pass away, but her parents fought aggressively to keep her alive. Disagreements like these can be avoided when an individual has a living will. Instead of family members having to guess what type of end-of-life care you would have wanted, they will be able to follow your directions.

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holidays, Wheaton estate planning attorneysIt is hard to believe that the winter holiday season is here again already. By this time next week, you may be getting ready to sit down for Thanksgiving dinner with your family, loved ones, and friends. A few weeks later, many families will get together to celebrate Christmas, Hanukkah, the upcoming New Year. If your family members live in various parts of the country, the winter holidays could be the only time during the year that your entire family is able to be together. Therefore, I might also be the only chance you have to talk about important subjects such as estate planning.

Prepare for the Conversation

It can certainly be difficult to start a discussion about your estate plans. In fact, even just thinking about estate planning can be uncomfortable because doing so requires confronting your eventual death. The conversation, however, is too important to skip completely. There is no need for your estate plan discussion to take many hours, nor does it need to prevent your family from enjoying the holidays. You can control the situation and keep the tone light and positive, but you will need to do a few things in advance, such as:

  • Talk to certain people before everyone else is involved. It not the best idea to surprise your children or family members in front of everybody during the holidays by asking them to take on estate-related responsibilities. If you want your daughter to be your executor, for example, speak to her about it in private beforehand. When everyone is together, you can let them know that your daughter has agreed to take on the role.
  • Make a brief outline. If you do not have any set direction, your estate planning discussion could go on for a very long time—to the point where it takes over the whole holiday experience. To prevent this, make a short list of the key things that you want to talk about. Then, stick to the list! Other related topics will almost certainly be brought up, but do your best to limit tangents.
  • Cover the big things. The holiday discussion is probably not the place to spend time on the minor details. It really does not matter who is going to keep your bedroom television. What does matter is where your important documents are kept and how your plan accounts for the possibility of mental or physical incapacitation.
  • Let your family speak, not decide. Feedback from your family regarding your estate plan can certainly be helpful, but in the end, the decisions are yours to make. Some of your plans might not be open to debate, and that is fine, but tell your loved ones that. On other subjects, you might invite thoughts and ideas that could contribute to your ultimate decision.

Contact a Wheaton Estate Planning Attorney

If you are in the process of creating an estate plan, or if you would like to get started on one, contact an experienced DuPage County estate planning lawyer. Call 630-665-2500 to schedule an initial consultation at Stock, Carlson & Duff LLC today.

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no-contest, Wheaton estate planning attorneysWhen a loved one dies, the loss can be very difficult on the surviving friends and family members. The intense emotions of dealing with the loss can often make a grieving family member act in ways that would be otherwise uncharacteristic, leading to serious disputes over a variety of matters. A common point of contention is the deceased person’s will, and serious battles can affect the stability of a family for years to come, if not permanently. In an effort to prevent such issues from tearing apart your family after your death, you may wish to consider including a no-contest clause in your will.

In Terrorem Provisions

A no-contest clause is also known as an in terrorem clause, which is a Latin phrase meaning “by way of threat.” Such a clause may be included in your last will and testament to deter beneficiaries from formally contesting the will. Most no-contest provisions specify that if an heir files a contest to the will, that heir automatically forfeits the portion of the estate intended for him or her. The idea is that, if there is a threat of receiving nothing, or a nominal amount like $10 or $20, a would-be heir is not likely to push for more. It is important to understand that a no-contest clause cannot stop an heir from contesting a will; its only potential impact is to what may happen as a result.

A Challenge Is Possible Anyway

Before deciding to include a no-contest clause in your will, you should meet with an attorney to discuss your particular circumstances. In some cases, the amount intended for specific heirs might not be enough leverage for such a clause to serve as an effective deterrent. For example, if you have a large number of beneficiaries each set to inherit $1,000, an heir might be willing to gamble with that amount to try an obtain a larger inheritance. If the original amount is $100,000, an in terrorem provision may be more effective.

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pet trust, Wheaton estate planning attorneyAs you go through the steps of creating an estate plan, you will probably give plenty of consideration to which of your family members will receive a particular asset or a part of your estate. If you have a young grandchild, for example, you could choose to bequeath one of your vehicles to him or her. With children, grandchildren, and other loved ones to consider, many people often overlook their companion animals. Could it be possible to include provisions for a pet dog or cat in your Illinois estate plan? Put simply, the answer is yes, but there are some limitations.

The Basics of a Pet Trust

Under the law in Illinois, you are permitted to make provisions for the care and protection of certain domestic animals through estate planning. In fact, the law explicitly allows for the creation of “trusts for domestic or pet animals”—more commonly known as “pet trusts.” The statute is not precise regarding the species of animals that are eligible to be covered under pet trust, as it simply states that the trust can be set up for the benefit of “one or more designated domestic or pet animals.” Over the years, however, Illinois courts have determined that pet trusts can apply to cats, dogs, and horses, as well as a number of other kinds of animals. Generally, livestock and farm animals are not considered domestic or pet animals.

In setting up your pet trust, you will be required to specify each animal that you wish to have covered. The trust documentation must include the animal’s name, sex, age, species, breed, and any other important details. You should also list any known health or medical conditions so that the individual you choose to manage the trust—known as the trustee—will be better prepared for the future.

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