"Contested Probate" and Its Cure

    Probate is the court procedure for administering the estate of a deceased person. (The term is also used in reference to administration of the estates of persons who are minors or disabled or both.)

   It has a bad name in some quarters. That is owing, so near as we can tell, to the endless court proceeding in Bleak House by Charles Dickens, to a book from the 1960s, How to Avoid Probate by Norman Dacey, and to the public filing in California of an inventory of the property and assets of a celebrity (Natalie Wood? Bing Crosby?).

   The reality of probate in Illinois is that it can be annoying and expensive, or largely painless, depending on the extent to which it is a "contested probate." The potential for contest exists at almost every step in the process. 

   There is room for contest even at step number one, determining who will serve as the representative. In theory, this risk is greater in an intestate estate (when there is no will) than in a testate estate (when there is a will), because a will will name an executor, and usually a number of back-ups, whereas, when there is no will, those entitled to serve as representative and those entitled to nominate a representative are not named but only described generically by the Probate Act of 1975. (755 ILCS 5/1-1 et seq.)

   However, the presence of a will does not of itself eliminate the risk of contest over who will be in charge of administering an estate. Will contests are so common that the Probate Act devotes a whole section to the subject (Article VIII, titled "Will Contests"). A "will contest" can materialize over the question whether a will that has been admitted to probate is invalid for one reason or another (e.g., incompetence, undue influence, fraud), or when two or more wills surface and a competition ensues to determine which is the true "last will."

   Potential for contest exists in the next step of the process, too, collecting the property of the estate and paying the claims. Any doubt of that is dispelled by the existence of sections of the Probate Act that spell out the ways and means of locating and identifying property and assets of the estate; resolving disputes over ownership of that property; submitting and responding to claims against the estate; and resolving disputes as to whether a claim should be allowed or disallowed in whole or in part. (See Probate Act of 1975 at Article XVI, titled "Recovery of Property and Discovery of Information," and at Article XVIII, titled "Claims Against Estates").

   The representative of an estate must, by law, render an accounting from time to time of the receipts and disbursements. This duty to account exists without regard to whether there is or is not a will and without regard to whether there is an "independent administration" or a "supervised administration." There is room for contest as to the accuracy of the accounting and the legitimacy of the disbursements. Representatives and their attorneys are entitled to compensation (See Probate Act at Article XXVII). That, too, holds the potential for contest.

   Oliver Wendell Holmes Jr. wrote that the life of the law is not logic but experience. The existence of legislation implies a problem. The Probate Act is peppered with provisions that anticipate contest and strive to remove the risk of it, reduce the risk of it, and resolve it in a sensible, orderly way.

   Readers of a certain age may remember that scene in the movie Zorba the Greek, where the villagers ransack the house of Dame Hortense right after her death. Probate in Illinois is a bit more orderly, and steps can be taken to simplify and smooth the process. 

   Here is our "top three" list. One, avoid probate altogether (or at least limit the scope of it) by setting up an inter vivos trust (also known as a "living trust") and taking care to see that all pertinent property is placed in the trust (including especially property that is acquired after the trust has been established). Two, make a will in order to deal with the eventuality that some property will end up as "probate property" despite diligent efforts to put it in the trust. If probate is inevitable, and it often is, a will can make it a simpler, more agreeable experience. Three, make a "pour-over will," that is, a will which names the trust as the beneficiary of the "residuary clause" (the part of a will that disposes of all property not the subject of specific gifts).

   We have helped others with "contested probate." We can help you. Call 630-219-3068.