Contested Decedent’s Estate Issues

In the State of Illinois, a probate estate is required if the decedent died leaving assets in excess of $100,000, or owned real estate.  A decedent who dies without having a will, leaves an intestate estate.  A decedent who dies with a Will, leaves a testate estate.  Each type of estate poses different challenges for the administrator or executor.

In each instance, it is necessary to identify who are the “heirs” of the decedent, by the filing of an “Affidavit of Heirship,” which documents the decedent’s heirs at law.

After a will has been admitted by a probate court, and a representative appointed, any interested person may file a petition, within 42 days of date on which the will is admitted, and ask for “Formal Proof of the will.”    The court will set a date for a hearing, at which time evidence must be presented to establish the sufficiency of the will.  Evidence by testimony or deposition of at least 2 attesting witnesses must show:

  • that he or she was present and the saw the testator (or some person in his presence and at his direction) sign the will;
  • that the will was attested by the witness in the presence of the testator;
  • that the witness believed that the testator was of sound mind and memory at the time of the signing or acknowledgement of the will.

If the above evidence is established, the court will admit the will, unless there is some proof of fraud, forgery, compulsion or some other improper conduct, which results in the court invalidating or destroying the will.

Once a will has been admitted to probate, any interested person has a 6 month period in which to contest the will.

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