Professional Estate Litigation Lawyers
When Litigation is Necessary for a Resolution
Unfortunately, disputes regarding money and property are common after a loved one passes. These disputes are complex and highly emotional. For example, an individual may feel that he or she has been unfairly excluded from a loved one’s will. Or, individuals may be concerned when their inheritance is less than what they expected.
Similarly, in matters involving a trust, a trustee may be held personally liable for failing to fulfill his or her duties under the trust and under the law.
Although estate litigation is similar to other types of civil litigation, there are some key differences. Specifically, the probate court is governed by the Illinois Probate Act, which has special time limitations relating to the filing of claims or actions. Therefore, it is essential that you retain an attorney who understands the unique rules that govern contested probate claims, as quickly as possible. The Chicago estate litigation lawyers at Hays Firm LLC have experience representing administrators, executors, trustees, beneficiaries, and heirs in probate litigation.
Estate Litigation Legal Services
Estate Litigation Attorneys At Hays Firm LLC Can Provide The Following Legal Services:
REVIEWING WILLS AND TRUSTS
Hays Firm LLC will review any existing wills and trusts created by the deceased in order to determine the rights and obligations of all interested parties. Our attorneys will ascertain whether it is necessary to open a probate estate based on the contents of these legal documents.
Open a Probate Estate to Protect Assets
Our attorneys will file all necessary documents and petitions to open a probate estate to protect the assets of the Estate. This will help protect the estate from different types of claims that may be filed against the estates in probate.
Recover Assets of an Estate
If assets have been unlawfully removed from an estate, our estate litigation attorneys will file all documents and petitions necessary to defend against fraudulent transfers and recover assets that have been removed from an estate.
Drafting an Estate Account
The attorneys at Hays Firm LLC will create an account showing the receipts and disbursements from an estate. We will help executors and administrators to distribute property and pay bills, according to the Illinois Probate Act.
Advising an Executor or Administrator
In the case of complex family issues, our estate attorneys will provide legal counsel to the Executor or Administrator of an estate. We will help to navigate the difficult, complicated, and sometimes emotional disputes and advise on the best way to move forward.
Advising a Beneficiary or Legatee
Hays Firm LLC provides legal counsel to beneficiaries of a trust or legatees of a will to ensure that their interests are protected. The Illinois Probate Act dictates that all claims be divided into seven classes, and beneficiaries will receive their claims according to these classes.
Removal of an Executor or Administrator
Unfortunately, Executors do not always comply with their fiduciary duties, which include gathering assets, paying bills, and distributing assets. Hays Firm LLC will file all documents and petitions necessary to remove a representative of an estate, should the need arise.
Contesting
a Will
It is not a simple matter to contest a will. Our Chicago estate litigation lawyers are experienced in the legal grounds that can be used, and will file all documents and petitions necessary to contest the validity of a will.
More About Estate LITIGATION Services
Can I sue the Executor of an estate?
Yes, an Executor of an estate may be sued if they are not performing their duties. While most Executors complete their tasks to the highest standard of care, some do make unfortunate mistakes, some are caught in the middle of a feud, and others betray the very person who entrusted them with the role of managing the affairs of their estate.
How can I attack the validity of a will?
If you believe that a will that has been admitted to probate is not valid, please contact one of our attorneys as soon as possible. There are several grounds upon which you may challenge the validity of a will. However, there are strict timelines in which to file such an attack and the timeline may vary based upon a variety of factors.
Can the Executor change the terms of a will?
No. A will may only be changed by the person who created the will.
What are the duties of an Executor?
Some of the duties of an Executor include: collecting the assets of the Estate; paying the debts of the Estate; selling certain debts where necessary in order to distribute the value of those assets to the beneficiaries under the will; and filing a final tax return for the deceased individual and the Estate.
Can the Executor be Removed?
An Executor cannot be removed simply because he or she exercised bad judgment resulting in a loss of estate funds. Serious misconduct is required in order to remove an Executor. If an Executor fails to uphold their obligations to the Estate and its beneficiaries, Illinois law allows a beneficiary, or someone else with a financial interest in the Estate, to file a petition to remove that Executor.
What happens if a will is Invalid?
If a court determines that an entire will is not valid, then probate continues as if there were no will, and assets are divided according to standard probate laws and procedures.
What are some examples of Executor misconduct?
An Executor of an estate has a fiduciary duty to the Estate’s beneficiaries. Unfortunately this duty is not always adhered to and misconduct can arise, such as failing to timely gather assets, allowing Estate property to fall into disrepair or mixing personal funds with estate funds.
Can an Estate be closed if a lawsuit has been created?
If someone files a lawsuit against the Estate during probate proceedings, the Estate is unlikely to be able to be closed. This does vary state by state, and immediate family may be able to receive allowances out of the Estate while proceedings continue.
GROUNDS TO FILE A WILL CONTEST DURING ESTATE LITIGATION
Our Attorneys Can Help You Navigate the Will Contest Process:
Challenging a Will in Illinois
Under Illinois law, any interested party is entitled to file a will contest, and must be done so in probate court within six months of the date that the will is admitted to probate. This can only be done when the person whose will it is is deceased. There are several grounds for contesting a will, including lack of testamentary capacity, undue influence, or fraud. A will contest effectively asks the court to declare the will void and invalid. A trial will be held to present and review all evidence and a decision will be made whether or not to invalidate the will and proceed with probate as if the will never existed.
Contesting a Will Based on Lack of Testamentary Capacity
Any person that executes a will (the testator) must have sufficient mental capacity to complete his or her will. An interested party may challenge the will based on the belief that the testator lacked the ability to think coherently and understand the consequences at the time of signing their will. In order to prove that a testator lacked the required testamentary capacity, there are several criteria that the claimant must show that the decedent did not meet at the time of signing. Lack of capacity is the most common grounds for contesting a will and an experienced estate litigation attorney can help determine if you have grounds for contesting your loved one’s will.
Contesting a Will Based on Undue Influence
In the event that an individual feels that their loved one has been subject to undue influence, leading to the individual being improperly excluded from the will, Illinois law states that they have the right to contest the validity of the decedent’s will. The party challenging the will bears the burden of providing evidence that the person benefiting from the will exercised undue influence over the testator (the decedent). This evidence is often in the form of a fiduciary relationship, either as a matter of law or as a matter of fact, and this then shifts the burden onto the defendant to rebut the claim.
Are Transfers to a Fiduciary Fraudulent?
Unfortunately, it is all too common for agents, caretakers and other individuals to take advantage of the most vulnerable and coerce them into amending their will before they pass away. It is often very difficult to prove that this coercion has taken place once the person has passed away, because it often occurred in private. Taking this into consideration, Illinois law protects individuals from exploitation, with the presumption that all transfers to fiduciaries are fraudulent. Certain elements must be proven to establish this presumption of fraud, and both parties should retain estate litigation lawyers who are experienced in such disputes.
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