Besides an action to contest a Will, a frustrated beneficiary may attempt to proceed with a tort known as "intentional interference with an inheritance." In some cases, this may be the ONLY way in which the potential beneficiary can proceed.

In the Nemeth case (425 N.E.2d 1187), for instance, the decedent's stepdaughter (not an heir of the decedent) filed an intentional interference with an inheritance action against her step-sister because a successful Will contest would have done her no good.

A number of cases have followed, trying to explain the limits and ramifications of the tort. A recent case involves the estate of a woman named Grace Ellis (found here as a PDF). The case was brought by the Shriners Hospital for Children, beneficiaries under a previous Will, against a man named James G. Bauman (who was named as sole beneficiary and executor under the Will that was admitted to probate). Ms. Ellis evidently died in 2003, but the Shriners took no action to contest anything until 2006. Maybe their itty-bitty cars were in the shop all that time? Or (more likely), perhaps the Shriners had no idea that they were named as beneficiaries in a previous Will.

Anyway, the Shriners file their suit, making the same sorts of allegations as you might see in a Will contest (lack of capacity and undue influence). But, of course, they can't file a Will contest, because Will contests must be filed within six months after the Will in question was admitted to probate.

Can you use the intentional interference with inheritance tort to get around the six month period, since it isn't a Will contest? No, says the court.

I usually talk about estate planning in terms of two different approaches:

Simple: having a simple Will, where you give away all of your property outright

vs.

More involved: having what's known as a pourover Will and a separate living trust. You give your property away in your living trust -- you leave it to a trustee, who holds it for one or more beneficiaries

But there's also a middle way, which involves having only a Will, but incorporating trusts into that Will. This is known as having a Will with a testamentary trust. What's the drawback to this approach, and why isn't it more popular?

Well, when I talk about the advantages of a living trust, I address 5 of them in particular:

1. Probate avoidance
2. Control
3. Creditor protection for beneficiaries
4. Privacy
5. Estate tax minimization

If you create trusts under your Will rather in a separate document, those trusts can't be funded during your life (since your Will has no effect until death). As a result, you will need a probate. Your beneficiaries also don't get privacy, since the trust information is all located in your Will, which is a public document. But the other three advantages still exist.

I've talked before -- most recently, here -- about executors who don't obey the wishes of decedents, and refuse to burn their works. Vladimir Nabokov's case (which involves this scenario) has been in the news lately, in a two-part series in Slate entitled The Fate of Nabokov's Laura:

Part 1

Part 2

A discussion of Illinois health-related directives such as powers of attorney and living wills.


MP3 File

A couple of things involving probate in Cook County that have changed recently (or maybe I just became aware of):

1. Fee increase. It now costs $304 in fees to open a probate estate worth more than $15,000, up from $279. The entire fee schedule can be found here (as a PDF).

2. Cover sheet. One procedural thing that needs to be done when you go to file your petition to open an estate: completing a probate division cover sheet. I don't know why it's needed, but it is -- the form is here (again, as a PDF).