Coping with the death of a family member can be a trying and stressful time. In some families, these situations bring long-simmering disputes to the surface, particularly regarding inheritances and promises. When siblings can’t agree on ownership, a family member’s final wishes, or the execution of estate plans, legal expertise is required.
An experienced estate planning attorney can help to explain family members’ options in disputing a will or addressing the probate process. Better yet, an estate planning attorney can help establish a person’s final wishes in legal documentation, including wills, trusts, and healthcare plans that should reduce the probability of sibling disputes.
5 Important Things to Know About Inheriting in Illinois
When siblings can’t agree on ways to co-own, manage, or divide inherited property, the legal system can be used to find solutions. However, relying on a judge to settle a dispute can further inflame issues between siblings. Knowing where disputes are likely to arise and taking a proactive approach can reduce conflict. Use the following as a guide:
1. Intestacy is the legal status of a family member who dies without a will. In this situation, Illinois probate court takes over much of the decision-making. State law is used to settle an estate without a will. Generally, the person’s spouse and children inherit the estate. In the absence of a spouse or children, the person’s siblings inherit their estate. This often results in any real property being transferred to all heirs for co-ownership.
2. Joint inheritance can create conflict. When multiple siblings inherit a property, it’s typically held as “tenants in common,” meaning co-ownership (not always in equal portions). This often results in disagreements between those who want to retain ownership for sentimental reasons and those who want to sell and divide the proceeds.
3. Partition is one of the court’s ways of ending disagreement deadlock. Anyone with an ownership share in a property can seek the court’s help to divide ownership, usually by selling it. This is called a partition action.
Typically, when siblings inherit shares in a family property and one or more want to sell it while others want to retain it, a partition action is instigated by filing a lawsuit in circuit court. The judge’s options are partition in kind (physically dividing the property) or partition by sale (ordering the property’s sale). Partition by sale is the most common.
4. Contesting a Will is a legal challenge that seeks to determine the legitimacy of the estate plan. This must take place during the probate process. If successful, a challenge can invalidate all or part of the will, changing who inherits specific assets. A challenge must present proof fraud, improper execution, the person lacked the capacity to write the will, or that someone exerted overwhelming influence to have the will written a specific way.
5. Dispute resolution outside of court includes options like mediation, buyouts, and co-ownership. Siblings who disagree on whether a jointly inherited property should be retained can seek alternatives to legal battles, preserving relationships.
- Mediation involves a disinterested third party who facilitates a negotiated solution.
- Buyout agreements allow one or more siblings to pay another for their share of the property.
- Co-ownership requires some agreement on management and cost sharing of the property, whether it’s rented out or if one of the siblings takes residence there.
Proactive estate planning is indisputably the best route to take. When the head of a family consults with an estate planning attorney, it’s critical to think through the potential areas of conflict and take additional steps to quell issues that might arise. Ways to reduce disagreements include:
- Providing specific instructions on selling or retaining inherited real estate.
- Appoint an executor or trustee.
- Specify who gets what property.
Avoiding the Inheritance Dispute Trap
Family disagreements are not inevitable when settling an estate. Consulting with an experienced estate planning attorney from Legacy & Life Law Firm can establish clear guidelines for distributing assets and preventing conflict. Contact Legacy & Life for a consultation.