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no-contest, Wheaton estate planning attorneysThere are a number of reasons that a will or other estate planning document may be invalid. If the testator was not of sound mind due to dementia or another health condition when he or she created the will, for example, the will may not represent the testator’s true wishes. If a testator was coerced or tricked into the provisions contained in his or her will, it is also invalid. If a loved one has reason to believe that the directions contained in a deceased person’s will should not be followed, they may contest the will in court. Unfortunately, some beneficiaries may contest a will simply because they do not like the instructions contained within the will. If you are concerned that someone may challenge the validity of your will after you pass away, you may want to consider adding a “no-contest” clause.

Basics of No-Contest Clauses

There is no way to completely prevent your will from being challenged after your death. However, you can discourage beneficiaries from challenging it. A no-contest clause is a provision in a will or trust that establishes certain “penalties” if a beneficiary challenges the validity of the will or trust. For example, perhaps you are worried that one of your children will be unhappy with his or her share of your estate. You worry that he or she will contest the validity of your will in an attempt to have the will thrown out. You could include a no-contest clause that states that if a beneficiary disputes the validity of your will and loses, he or she will lose part or all of the inheritance assigned to him or her. The possibility of losing a significant inheritance can make a beneficiary think twice before challenging your will.

Limitations of an Illinois No-Contest Clause

It is important to note that a no-contest clause cannot guarantee that your will may not be contested. A beneficiary may still choose to challenge the will even at the risk of losing his or her inheritance. If the will is found to be invalid, the directions contained within the will may be disregarded and your estate may instead be distributed according to intestate law. A no-contest clause also does not discourage people who are not named as beneficiaries from challenging the will. The best way to prevent your will from being successfully challenged is to work with an experienced estate planning attorney who can ensure the validity of your will.

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DuPage County wills and trusts lawyersIt can take decades to build wealth, so it only makes sense for guarantors to want a say over how their assets will be distributed upon their death. Wills and estate plans are valuable estate planning tools that can allow you to do just that. There are some distinct differences between these two options, however, and a variety of factors can dictate which option is most appropriate for your situation. Learn more, including how our seasoned estate planning lawyers can help protect your heirs, and your estate, immediately and long into the future. 

What is a Will? 

A will is a written document that explains how a guarantor’s assets should be distributed, upon their death. A guarantor can retract or amend a will at any point in their lifetime, and an update is recommended any time that a guarantor experiences a significant change in their situation (i.e. marriage, divorce, children, etc.). Wills can also be used to name guardians for minor children. 

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A Last Will and Testament is the most well-known estate planning document. A Will is used to distribute property to beneficiaries at death and make other end-of-life wishes known. Today there are many more options to efficiently handle these matters--like use of a living trust. But even with the expanded choices, the Will remains the most commonly used estate planning tool.

 Last Will and Testament IMAGE Illinois law is very specific in identifying the exact requirements that must be met for a Will to be deemed valid.  The Illinois Probate Act of 1975, lists those requirements, which include that the will be in writing, witnessed and signed at the same time by two individuals who are not beneficiaries under the will, that the testator have the capacity to sign the Will at the time, among other formalities. It is quite common for Illinois residents to hire an attorney to draft a Will. Failure to do so often results in a Will being rejected by the court at the very time when it is needed. However, even those who have the aid of an attorney when drafting a Will can later make the mistake of modifying the document without legal guidance. This is usually an error that can result in the document being rendered ineffective and assets distributed via intestacy rules against the actual wishes of the testator. There are formal requirements that must be met even when modifying a Will.  Think Before You Act

A common mistake is for someone to take a Will created by an attorney and simply write changes on top of the older document. Will those changes be upheld by the court? Unlikely. Changes or additions to a Will, usually referred to as a "codicil," generally must meet the same signature and witnessing requirements as the a new Will itself. Those requirements are safeguards to minimize the risk of fraud or deception. As such, crossed out names, changed bequests amounts, or other handwritten adaptations to a previously signed Will must not be made haphazardly.

 In practical terms, it is always best to simply have a new Will drafted when you are interested in changes. With modern technology, it is a relatively easy process to make alterations or additions to a digital document, and so formal codicils are less necessary. In this way, all the formalities can be followed explicitly, with an unaltered Will available when necessary to lower the risk that another party may challenge the document in probate. As always, if you are considering changes to your Will (or you want one drafted) contact our  DuPage County estate planning attorneys today to see how we can help. Our team at Stock, Carlson, Flynn, and McGrath, LLC works with residents in Wheaton, Glen Ellyn, St. Charles, and many other local communities.

Having a will may not always be enough, according to an article in the Chicago Tribune. If you have made other arrangements, they may take precedence over your will. For instance, if you own a home jointly with rights of survivorship, the owners get the property when you pass on, no matter what your will says. Additionally, any property that has a named beneficiary (e.g. retirement and savings accounts, annuities and life insurance) goes to the beneficiary despite what your will dictates.

When making a will, it is very important to go over the details with an experienced estate planning attorney. You should bring your attorney a list of all your assets with named beneficiaries. If you want to change the beneficiary of any of your assets, the documents dictating the disposition of that asset need to be updated. If the documents have been signed by you and other people, it is necessary to get their permission first.

Property that is individually owned and without a named beneficiary passes by will. It is possible that all of your assets have named beneficiaries or are held jointly with rights of survivorship. In this case, you may not have any property that would pass by will. However, a will could become useful in any case. For example, you can name beneficiaries in your will for assets that you do not have yet but expect to get later. You can specify guardianship arrangements for your children, and you can define how your personal property will be distributed.

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