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When someone passes away in Illinois, their will typically outlines how their estate should be distributed. However, there are instances when a will is missing, or the validity of the will is questioned. If you are in a situation where a will cannot be located or is believed to be invalid, it is crucial to understand your options and the steps you can take to resolve the issue.
Steps to Take When a Will Is Missing
If a will is missing, the first step is to thoroughly search for it. Often, individuals store their wills in safe places such as a safe deposit box, with an attorney, or in a personal safe. If the will cannot be found despite searching, you may still be able to proceed with the estate administration by attempting to locate other potential documents or evidence. In some cases, family members or loved ones may have copies of the will or knowledge of its contents. Even if the original will remains elusive, a copy of the will can be submitted to the probate court.
If no will is found, or if the only copy is a copy rather than the original, the estate will be treated under Illinois’ laws of intestacy. This means that the estate will be distributed according to state law, which generally distributes assets to close relatives, such as spouses, children, or parents, depending on the circumstances.
When a Will Is Questioned for Validity
In some cases, a will may be present, but its validity is contested. Common reasons for questioning a will’s validity include:
- Lack of proper execution: In Illinois, a valid will must be signed by the testator (the person making the will) and witnessed by at least two individuals who are not beneficiaries.
- Undue influence: If someone can prove that the testator was coerced or manipulated into signing the will, the document may be declared invalid.
- Lack of mental capacity: A will can be contested if it is believed that the testator lacked the mental capacity to understand the nature of their actions when signing the will.
- Fraud or forgery: If there is evidence that the will was forged or signed under fraudulent pretenses, it may be invalidated.
When a will’s validity is contested, the person challenging the will must present evidence to support their claim in court. This may include witness testimony, medical records, or other documents showing that the testator was under duress or lacked the capacity to make decisions.
What Happens If the Will Is Invalid or Missing?
If a will is determined to be invalid or cannot be located, the estate will generally proceed under the Illinois laws of intestacy. This means the state will dictate how assets are divided based on family relationships. Typically, a surviving spouse and children will be the primary beneficiaries, but the distribution may vary depending on the specifics of the family structure.
If a valid will exists but is contested and invalidated in court, the court will also apply intestate laws to distribute the estate, unless a valid prior will is found. If no will is present and there are no legal challenges, the estate administration will follow the standard intestate probate process.
How Bielski Chapman, LTD. Can Help
Dealing with a missing or invalid will can be a complex and emotional process. If you find yourself in this situation, it’s essential to contact an experienced estate planning attorney. They can guide you through the probate process, help determine if a will is valid, and represent your interests in a will contest. An attorney can also assist in filing a petition with the probate court to initiate the process of administering the estate and ensure that assets are distributed according to the law.
If you’re dealing with a missing or invalid will and need guidance on how to proceed, contact Bielski Chapman, LTD. today to speak with one of our experienced estate planning attorneys. We’re here to help you navigate this situation and protect your interests.