Probate is the legal process by which a will is “recognized” and the court gives the executor of the estate permission to proceed with enforcing the terms of the will. Most wills are probated with few problems however, if a beneficiary disputes the terms or an excluded person believes they were unjustly omitted, then the process can become substantially more expensive.

Illinois codified its probate process (prior to the law, it existed as common or “judge-made” law) with the Probate Act of 1975 (the “Act”). The Act has undergone a few revisions since it was passed, partially to address the presence of online assets, social media accounts, and other issues presented in modern life.

Wills vs. Intestate

Probate deals with two areas of estate planning, intestate issues and enforcing wills. Intestate occurs when the decedent (the person who passed away) fails to dispose of an asset through a will, trust, gift, or other method prior to death. Intestacy provides the rules by which courts are to distribute any unallocated assets.

Conversely, a will sets the terms for distributions. A decedent is free to dispose of his or her assets through any method they decide (subject to a handful of restrictions, for example, a decedent cannot disinherit family members for marrying someone of a different race).

Intestate Succession

The crucial rules for intestate concern who is eligible and for how much are they eligible for an inheritance. Illinois provides that, if there is a surviving spouse and surviving descendants, then 1/2 of the estate goes to the spouse and the remaining 1/2 is divided among the descendants “per stirpes.” “Per stirpes” means that the estate is divided up based on generation and divided to the survivors of that generation.

For example, if D leaves behind a spouse, one child and two grandchildren. If D left $20 intestate, then her spouse would receive $10. Assuming the two grandchildren were born to a second children that predeceased D, thus they are nephews of Child One, then Child One would receive $5 because the remaining $10 is divided in half (one for each child, including the predeceased one). The remaining $5 is then divided among the two grandchildren.

Wills

Illinois permits anyone who is over 18 and is of “sound mind and memory” to bestow any property by will to her heirs. A significant portion of probate hearings is consumed with descendants contesting whether the decedent was of sound mind and memory.

The Probate Act provides that a will is presumed void if it was drafted after the decedent is adjudicated disabled and a guardian is appointed to manage her affairs. The presumption can be overcome, but proponents of the will must submit clear and convincing evidence that the decedent had the mental clarity and capacity to draft the will.

If the decedent is of sound mind and memory, she must draft a will that is in writing, is signed by the decedent, and attested by two or more credible witnesses. If a will lacks any of these requirements, it is presumed invalid. Additionally, any future modifications (called “codicils”) must comply with these same rules of construction. The law presumes that beneficiaries under the will are not “credible” for purposes of attesting the will.

The code also requires executors to act in the best interests of the executing the terms of the will and according to the intent of the decedent. Executors are prohibited from taking any actions that benefit themselves at the cost to enforcing the will.

Void Transfers

Some people who are disinherited, try to avoid the terms of the will by convincing or tricking the decedent into gifting property or cash while they are alive. A rising concern in Illinois was with caregivers taking advantage of their patients. To address these concerns, Illinois presumes that any transfer to a caregiver that is more than $20,000 is void.

The caregiver can overcome this presumption with clear and convincing evidence that the transfer was not the product of:

• Undue influence;
• Fraud; or
• Duress.

Caregivers are required to submit proof that rebuts each of these allegations, regardless if they are brought because the law presumes one of these concerns is present.

Will Contests

To challenge a will, the plaintiff must submit their claim within six months after the will is admitted to probate. Plaintiffs must serve a copy of their claim on the court, oppose counsel, and to each of the named beneficiaries.

The case then proceeds to trial. The essence of the dispute is whether the will represents the intent of the decedent. The plaintiff first submits proof that the will does not represent her intent. The executor of the will may then rebut the plaintiff’s case. If the plaintiff prevails, the will is disregarded and the state falls into intestacy.