In Illinois, the probate litigation process begins with a controversy related to an estate. When two parties are unable to resolve a matter amicably outside of court, the offended party will usually resort to the court litigation process in Illinois. So how does the Illinois contested estate process work? Let's take a look.
Illinois Contested Estate Litigation Process
Illinois probate litigation begins with the filing of a Complaint by the offended party. The Complaint will detail the harm that has been caused by another party, and will ask for appropriate damages. In an Illinois contested estate, a common complaint is that funds were taken by an heir of the estate by use of a joint bank account or Power of Attorney for Property. The offended party (which can include the estate itself) will then ask the court for the funds to be returned to the estate. The defendant (which also can include the estate in certain instances) will then have time to respond to the initial Complaint. In his/her answer, the defendant will typically deny the allegations, or give some kind of defense that allowed the defendant to legally act in a certain way.
Once the plaintiff (the one filing the Complaint) and the defendant have filed their initial pleadings and related motions, the court will allow for an appropriate time for discovery. This is the phase of the litigation where the parties try to discover information related to the estate that could help their positions. Discovery in Illinois estate litigation will usually be done by using subpoenas, interrogatories, and/or depositions.
Finally, after the initial pleading phase and the discovery phase, the matter will typically either reach a settlement or go all the way to a major contested hearing or trial.
How many Illinois contested estates go all the way to trial?
As in most areas of the law, very few Illinois contested estates go all the way to trial. The vast majority of the estate litigation cases in Illinois will be settled at some point prior to trial. And for estates under $500,000.00, the number of cases that actually go to trial are likely even fewer as the estate simply does not have enough money in it to justify the legal fees and related litigation costs that are incurred by both sides. Thus, while trials get all of the attention in the media, the reality is that very few contested matters, including contested estates, ever even go to trial.
Do you need an attorney to represent you in Illinois probate litigation?
Technically, in Illinois, a party can represent him/herself in a contested matter in court. This is called proceeding pro se (without an attorney) in a case. However, while you can proceed without an attorney, most people realize that the estate litigation process is far too complicated for non-lawyers to handle competently on their own. Thus, it is highly advisable to hire a competent estate attorney to help you in an Illinois contested estate matter.
If you have an Illinois estate litigation matter, contact us today to see how we can help you resolve the estate. In our practice, we represent Executors named in a Will (as well as Administrators who have already been appointed by a local Probate Court) to settle litigation related to an estate. If you are an Executor (or a court-appointed Administrator) with a contested matter, give us a call at (630) 898-4789 to set up a free initial consultation.
The Law Office of Kevin Williams, 2295 Bannister Lane, Aurora, IL 60504, (630) 898-4789