Illinois Estate Planning & Elder Law Blog

A No Contest Clause (a/k/a in terrorem clause) is used in wills to prevent a beneficiary from challenging provisions in a will. A beneficiary may seek to increase the amount he is to be given under a will by challenging the will’s validity. If a will is declared invalid, the property in the estate will pass under the rules of intestacy. The beneficiary may receive a greater amount under these rules.

In Illinois, No Contest Clauses are allowed, but the courts construe them strictly.

One strategy is to leave the person who is to be disinherited enough so that he will be too afraid to risk losing it.

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In Illinois, estates can be administered under an Independent Administration or a Supervised Administration.

Unless requested by an interested person to go supervised, an estate is opened as an independent administration. Unlike the supervised administration, the independent administration does not require filing the inventory and accounting with the Court. The inventory and accounting are not subject to view by the Court, and they are not public record. However, they are sent to the beneficiaries for approval.

No Court authority is needed to sell real estate when there is an independent administration, and an independent administration may be converted to a supervised administration at any time by any interested party upon request to the Court.

With a supervised administration, the inventory and accounting are filed with the court and as a result are a matter of public record. The accounting is subject to approval by the judge, including the attorney and fiduciary fees. In addition, the representative needs court approval and personal service on all interested parties to sell real estate.

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If there is controversy in an estate, commencing a probate proceeding will provide a forum to resolve the controversy. This is a situation where one may not want to avoid probate.

Opening probate when there is controversy will also provide a forum to the other side. For example, all creditors’ claims are dismissed after two years under the probate act. By opening an estate, the period is shortened to six months, but the creditor is also provided a forum to file his claim. If no estate is opened, it is harder for the creditor to file his claim.

Continue reading "Estate Planning in Illinois and Avoiding Probate" »