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Does a Trustee Have a Duty to Defend Against Trust Contests in Illinois?

Updated on
January 16, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we answer the question, “does a trustee have a duty to defend against trust contests in Illinois?”

A trust contest is a lawsuit filed with the purpose of challenging the validity of a trust.  To learn more about trusts contests, check out our article: Illinois Trust Contests Explained.

According to Illinois law, the trustee of a trust has the duty to to the beneficiaries of the trust to defend the trust against trust contest actions that may result in a loss to trust estate unless, when all of the circumstances are considered it is reasonable to not make such a defense.  

In determining whether it is reasonable for the trustee to defend the trust against trust contests, Illinois courts consider factors such as the likelihood that the trustee’s defense will be successful and the cost of litigation.

If a trustee properly defends a trust for the benefit of the trust estate, the trust is required to pay the attorney fees and court costs associated with the defense.  However, when the defense of the trust is not in the interest of the beneficiaries, the trustee will be required to bear his or her own fees.  

If a trustee is unsure whether it is appropriate to defend a trust against a trust contest, the trustee can file a motion seeking direction from the court as to whether the defense is appropriate before making a decision.  This will ensure that attorney fees for the defense are paid by the trust.  

Does a Trustee Have a Duty to Defend Against Trust Contests in Illinois?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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