2014 The Gierach Law Firm. All rights reserved.

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1 Based in Naperville, IL, the business and estate planning lawyer at The Gierach Law Firm serve clients throughout northern Illinois and the Chicagoland area, including Chicago, Wheaton, Geneva, St. Charles, Oak Brook, Aurora, West Chicago, Bolingbrook, Willowbrook, Glen Ellyn, Evanston, Downers Grove, Lisle, and Naperville, as well as other communities in Cook County, DuPage County, Kane County, and Will County The Gierach Law Firm. All rights reserved.

2 Question #1 How can a Will be Challenged in Court? Answer: A will is challenged in a probate court by filing what is referred to as a will contest. In order to file the will contest, you need to have grounds to file it, by having evidence that the deceased either did not have the mental capacity to know what they were signing. Alternatively, another reason to contest a will is that the deceased was under physical, emotional or mental duress to sign a document to benefit the person (or their family) that is causing the duress. With respect to the first reason (lack of mental capacity), objective evidence is needed such as the testimony of their normal doctor or a specialist, the testimony of witnesses to the document who thought that the deceased might be too confused to sign, or the testimony of outside third parties that normally saw the deceased, such as their barber or hairdresser, their banker, their minister and the like. If the reason that will contest is filed relates to duress, objective evidence is also needed. This evidence may consist of testimony of outside third parties who saw the deceased on a regular basis, alone or with the person who may be causing the duress. The person who is challenging the will has the burden to prove that the deceased did not have mental capacity or that the will was made under duress. G i e r a c h L a w F i r m. c o m Page 2

3 Question #2 Can a gift made by the deceased be challenged? Answer: Sometimes gifts are made by the deceased prior to their death. The closer in time the gifts are made to the date of death, the more likely the gifts will be questionable. A gift has to be made with donative intent, which is the intent by the donor to make that gift to the recipient. In order to have the intent to make the gift, the donor has to have mental capacity at the time the gift was made and cannot be forced or under duress in making the gift. Similar to the challenge to a will, in order to challenge a gift, the person who is challenging the gift must present evidence that the person making the gift either lacked the mental capacity to make the gift or was under some form of duress at the time that the gift was made. G i e r a c h L a w F i r m. c o m Page 3

4 Question #3 What if the sibling who was put in charge by the parent refuses to give information to the beneficiaries? Answer: This is, unfortunately, a common occurrence. Sometimes, this occurs because the sibling was put in charge by the parent and thinks that the job should not have scrutiny by other siblings. Sometimes, this occurs because the sibling is really disorganized and has not kept adequate records. Other times, though, the reason is that the sibling has kept whatever funds or assets that were left at the death of the parent for himself or herself. If this is the situation, the other sibling will have to file a matter in court to force the sibling in charge to produce the documentation showing what the deceased had as of their date of death. If the information produced significantly differs from what the deceased should have had, the court will generally cause the sibling who was left in charge to explain what happened to the funds. G i e r a c h L a w F i r m. c o m Page 4

5 Question #4 What if a parent leaves a piece of commercial rental property to his/her children, but they cannot agree on anything? Answer: Sometimes a parent leaves everything equally to his or her children, thinking that they are being fair to all of their children. They are usually hopeful that despite sibling rivalry, they will all pull together at the parent s death and just get along with each other. Despite the parent s best intentions, there is conflict created. This may be because of long standing issues between the children or as a result of pressures put on a child by a spouse or economic circumstances. In that circumstance, the siblings may decide to buy out the share of the other. They obtain an appraisal of the property and the buying siblings obtain a loan from a bank (if needed) and a sale takes place. If this is not possible to do due to financial or other considerations, the sibling who wants to liquidate their share can petition the court to sell the property. G i e r a c h L a w F i r m. c o m Page 5

6 Question #5 Can a parent give nothing to one child and give the rest to another child? Answer: A parent is not required to give each child the same amount or to give a child anything. The parent could leave everything to charity or to a new spouse. Many times the parent will leave the estate to certain children and not to others, as some children are financially successful and others are not, having required more support from the parent during the parent s lifetime. This may be due to emotional problems or health issues that the child has. Many times that parent will leave that share in trust for that child to preserve the principal for their benefit during the child s lifetime. Whatever the reason for the difference in the bequests to certain children, sometimes the other children will feel slighted. Unless these children have evidence that the parent lacked capacity or signed the will or trust under duress, the courts will generally allow the parent s plan to go forward. G i e r a c h L a w F i r m. c o m Page 6

7 Question #6 What happens if the terms of a will or trust are confusing? Answer: Once in a while there is language in a will or trust that is confusing, or parts of a document that have been left out, or the language can be interpreted in several ways. When that happens, the executor or trustee will ask the court to interpret what the deceased wanted to say in the document. The court will look at the four corners of the instrument to try to determine the intent of the deceased prior to looking outside of the document. The court will then make a ruling on what the language should have said. In some states, there is a law that allows all of the parties executor, trustee, and beneficiaries to agree to what the language means. The Executor or trustee then does a settlement agreement incorporating the language and its effect on each party, which becomes binding on each party and their descendants. This is a method to resolve the ambiguity that may be contained in a will or trust without incurring the cost of going to court to make that determination. G i e r a c h L a w F i r m. c o m Page 7

8 Question #7 How do I find a great lawyer to handle a probate or trust dispute? Answer: The best thing to do is to look for someone who practices in the county that you may have to file suit in, who has years of experience handling probate and trust disputes. Although a lawyer may have had training or coursework that taught them how to handle these types of disputes, there is no replacement for a lawyer who has handled estate or trust disputes. This will allow a lawyer to tell you whether you have a good case, how the courts have handled the issues in the past, what evidence you need in order to win the case. After all, wouldn t you rather have someone who has experience handling disputes tell you if you have a case or not and whether you can possibly win it before you start the dispute? Keep in mind that no attorney can guarantee results, as new information may come to you or your attorney after the lawsuit is filed that may alter the result. The Gierach Law Firm has successfully handled estate and trust disputes for over thirty years. G i e r a c h L a w F i r m. c o m Page 8