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Kevin O'Flaherty

In this article, we discuss what happens when a claim in the probate process for an estate is contested in Illinois. We’ll discuss the initial hearing and contesting process, common responses and/or motions to a claim or counterclaim, and some of the stipulations surrounding the trial process. Also, check out Illinois Probate Claims Explained and The Illinois Probate Process Explained for more information.

Initial Hearing and Probate Contesting Process

When someone dies their estate will enter into probate and claims—typically for money, property, or both—can be filed against the decedent’s estate. Normally, a hearing for the claim will be scheduled within thirty days of the claim being filed. During the initial hearing for the claim, a representative for the decedent’s estate can dismiss the claim, allow the claim, continue the claim, or set the claim up for a future hearing. A claim will be continued if both parties agree it can be settled. The representative can dispute the claim, causing it to head to trial, subject to additional pleadings and discovery. The estate can also file a counterclaim against the claimant, and if the court finds the claimant indebted to the estate the court can rule in favor of the estate.

Responses to a Probate Claim

Once a claim and/or counterclaim has been delivered a representative or anyone else who may be affected by allowing the claim to move forward has 30 days to file their own formal written claims or defenses, also known as pleadings, against the initial claim. Probate proceedings being under civil litigation, either side can file for a motion for judgment or a motion on the pleadings of the claim. 

Trial for Contested Claims in Probate Cases

Once the discovery phase has been completed a contested claims probate case will move into the trial phase. There are some stipulations to consider in regard to the trial.

  • A jury trial may be demanded, but the claimant or counter-claimant (usually a representative for the estate) must file the jury demand at the same time as the claim or counterclaim. Similarly, the person opposing the claim or counterclaim must file his or her jury demand at the same time as the answer to the original claim or counterclaim;
  • Issues with the Illinois Dead Man’s Act
  • The Illinois Dead Man’s Act is a statute that is meant to prevent fraudulent claims in Illinois probate litigation, will contests, and estate disputes. It prevents parties to litigation from testifying about their own conversations with the decedent if that testimonial would directly benefit the testifying party. 
  • Exceptions to the Illinois Dead Man’s Act which would allow for testimony include 1) If no one objects to the testimony, 2) if someone testifies on behalf of the representative regarding any conversation or event that took place in the presence of the deceased person, others may testify concerning the same conversation or event, 3) any matters covered in a deposition admitted to evidence on behalf of the representative for the estate 4) facts about the deceased person’s heirship, 5) if a claim or defense is based on a written record made by the deceased person while in the ordinary employment of the witness, testimony regarding the entries of the written record can be made by the witness. For more information on the Illinois Dead Man’ Act click here.

Burden of Proof in Probate Claims

As with all civil suits, the burden of proof is first with the claimant. Once the claimant has sufficiently established his or her argument with any facts and/or presumption the burden of proof switches to the estate. For example, let’s say your friend worked for a company but died unexpectedly and you found out her estate was being sued by the company for misappropriation of corporate funds. It’s on the company to first prove that she received company funds and that the money was not used for the intended purposes. Now it becomes the estate’s burden to prove that the funds received by your friend were actually used for the proper company-related expenses.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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