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Written by AskTheLawyers.com™
“Probate court litigation” is a broad term that umbrellas a variety of situations, all of which have to do with a person’s estate after he or she has passed away and the time comes to review their will or trust post-mortem. The process of probate litigation typically includes identifying the assets of the deceased, deciding on the payment of taxes and other expenses, and, lastly, distributing the property among legal heirs as provided in the will.
While some contested probate matters don’t result in animosity between the beneficiary parties, others certainly do, and the emotional characteristics of family matters, particularly following the tragedy of a loved one’s death, assures that probate court is no stranger to high tension and ensuingly complex legal battles.
Before we get into the issues that arise in probate litigation and what the process of involving yourself in a claim entails, it’s important to understand the titles and duties of the characters that the will appear throughout your analysis of an estate plan and, in some cases, appearance in probate court itself. The most important players include:
The Executor. This is the person who owns the property, and who is leaving the property to others during life (in a trust or gift) or at death (in a trust or a testamentary will). This person can also be called a testator, regarding estate plans that involve a will; or a settlor, for those that concern a trust.
The Trustee. Generally a third party, such as a lawyer, family member, Certified Public Accountant (CPA), or the bank or corporation that was granted fiduciary duty to follow the trust directives, and carry out the wishes of the executor, testator, or settlor in the interests of the beneficiaries. This person is generally paid out of the trust funds for their work.
The Beneficiary. The person or persons who has the right to receive the gift, inheritance, or trust property.
In your previous research, you may have discovered that pinning a precise definition for “probate litigation” can prove difficult. Many websites make the mistake of narrowing the field to so few categories, or over-broadening their language so liberally, that it becomes impossible to understand the exact implications of entering a probate dispute, and what qualifies in this sector of U.S. law.
In fact, probate court and litigation can be a necessary legal path for a variety of situations, ranging from the issues of dysfunctional families; "nonstandard" or faulty estate plans; suing unscrupulous fiduciaries guilty of financial abuse; and determining mental incapacitation in a benefactor that would, if proven, disprove or invalidate their alleged final wishes.
That being said, the most common probate issues, and those that you’re most likely to bring to Illinois probate litigation court, include:
All of the above described issues have specifically to do with probate litigation, which differs from several other categories that are often incorrectly lumped with it. Those categories include probate transactions, probate administration, as well as the original process of drafting the will and/or trust, which fall into other, slightly removed legal areas such as estate planning, tax law, real estate law, and family law.
While elements of these categories may appear throughout your probate claim, we are chiefly concerned with issues that fall directly into the jurisdiction of probate litigation: a communicative matter between multiple contesting parties regarding alleged issues that have risen within or because of a will or trust.
As with all other legal practice areas, probate litigation regulations differ vastly from state to state. Illinois laws affect a number of probate litigation areas and require detailed understanding in order to ensure you are acting in accordance with local laws, as well as ensuring that the will itself was written in accordance with local law.
The remainder of this article will cover how Illinois probate litigation are specifically designed and enforced.
Also known as a Spousal Share, this area of probate litigation becomes more complex in community property states. Illinois, however, is a non-community property state, or the common law system. According to this system, a spouse is essentially automatically entitled to their community property, which is generally (but not always, and also arguably) at least half of the property accumulated throughout the marriage. This is also with the exception of separate property, defined above.
The legal standard for proving financial elder abuse is, perhaps reassuringly, much lower than you may think: the concept of “abuse”, in the sense of financial abuse, is fairly easy to prove through bank records. It is also important to understand the need to provide circumstantial evidence because such conduct almost always occurs behind closed doors, with no witnesses at all, in order to corroborate that the executor would not have granted a person access to their assets in a more quality mental state.
In Illinois, the victim or representative of the victim must prove that the defendant took, hid, appropriated, or retained the victim’s property, and/or assisted in taking, hiding, appropriating, retaining the victim’s property, for a wrongful use with the intent to defraud, and that the victim was harmed because of these actions.
Because estate issues represent such a complex area of the law, with an endless list of various “but”, “what if”, and other semantic scenarios poised to reinterpret an executor’s intent, the statute of limitations on filing challenges to an estate is subject to differences both slight and significant across each state. Illinois’ statute of limitations regarding probate litigation state that interested parties have a six-month time limit to contest an estate once it enters probate.
General regulations, which apply almost unanimously for all states, include:
Lastly, if a second, or otherwise more recent copy of the will is found that is believed to override the original will, the date of probate on the new will takes precedence from the date of probate on the original will.
Different states assign different courts to handle probate issues and estate administration. However, a number of states, including Illinois, do not have separate court specifically constructed to hear probate matters. In such instances, local courthouses will be able to accommodate the proceedings. For especially high profile, or extremely complex cases, your probate litigation claim may, however, require the adjudication of Illinois Superior Court.
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