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Kevin O'Flaherty

In this article, we discuss who is necessary for a will or trust dispute to move forward and answer the following questions:

  • What is a “Necessary” or “Indispensable” Party?
  • Who are the Necessary Parties In Will Disputes Versus Trust Disputes?
  • What if a Necessary Party is Underaged?

What is a “Necessary” or “Indispensable” Party?

Before a decision can be made regarding a will or trust dispute certain necessary or indispensable parties have to be notified, involved, and ultimately “vote” on the potential decision. Most often these people are beneficiaries, legatees, trustees, etc, all the usual parties involved in wills and trusts. However, there are times when will or trust disputes try to skirt around a specific party in order to push through a modification to the document, which ultimately leads to some significant legal action.

A good probate attorney and a responsible trustee or fiduciary should know all the necessary parties that need to be involved in a trust or will dispute. A “necessary” party is defined by the following criteria:

  • A party whose rights or interests will be affected by a court order involving the will or trust;
  • A party whose power through litigation and actions under the will or trust will be affected by a court order involving the will or trust;
  • A person who if not joined would likely result in a biased court order; or
  • A person with a material connection to the will or trust dispute.

An “indispensable” party is one that has both an interest in the conflict and also a direct involvement in the management of the will or trust, such as the trustee or other type of fiduciary. Another way to look at this is that the indispensable party will be directly affected by a decision made regarding the will or trust and without whose input and management, the other necessary parties risk not be equally represented. All necessary and indispensable parties must be present for the court to proceed to a final determination.

Who are the Necessary Parties In Will Disputes Versus Trust Disputes?

Generally, regarding a will, the legatees and devisees are considered necessary parties. The legatee being an individual who will inherit personal property under the will, real (estate) or monetary, and the devisee being an individual who only inherits real property under the will. Other necessary parties include those involved with the management of the will (the executor) and any other parties who may be affected by a decision or modification involving the will. Under the Illinois Probate Act, all heirs and legatees must be notified for the probate of a will, while a will contest requires only legatees and heirs whose names are listed in the petition to admit the will to probate.

In a trust, the necessary parties include the beneficiaries and any other individuals who would be affected by the modification, termination, etc of the trust. As mentioned above, the fiduciary and/or trustee that manages the trust is also considered a necessary and indispensable party.

What if a Necessary Party is Underaged?

In Illinois, if a necessary party to a will or trust dispute is underaged or unborn the court will attempt to appoint a guardian ad litem if one does not exist already or the underaged party does not have a ward who can legally make decisions regarding will or trust matters. However, in Illinois, a judgment regarding a will or trust dispute may not be complete and binding to the underage party even though he or she was represented by a guardian ad litem. For such matters, an underage party’s claim is not barred by the statute of limitations in Illinois until two years after reaching maturity. Also, previous cases involving underage parties and trust disputes have ruled that it is not enough that a guardian ad litem simply consent to a modification, but rather any action by the guardian ad litem must be within the best interest for the ward and consider the input of any other beneficiaries or interested parties. The guardian ad litem must adequately represent his or her ward and be able to articulate the reasoning behind any decision made regarding the ward and the trust dispute.

If you have any questions regarding will or trust disputes, don’t hesitate to call our office at 630-324-6666 and speak with one of our experienced probate attorneys.

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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