How to Contest a Living Trust in Illinois

by John Cromwell

A living, or inter vivos, trust is created while the person donating trust property is alive. Trusts of this type are generally created as a means to avoid placing property in probate, which can delay the distribution of property to beneficiaries. In Illinois, you have six months from when a will is submitted to probate to formally contest a living trust.

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Step 1

Determine whether you have standing to contest the trust. Only “interested” parties may contest a living trust. Examples of an interested party include the beneficiaries of the trust, individuals who would have a claim on the estate under intestate succession, or anyone who might have a claim on the estate under a prior will or trust agreement.

Step 2

Consider whether you have grounds to contest the trust. A trust can only be contested if it was invalidly drafted or the creator of the trust did not know what she was doing when she created it. Common bases for contesting a trust include arguing the trust was created by someone subjected to undue influence, the creator was incompetent when she created the trust, the creator was tricked into creating the trust due to fraud, or language creating the trust is ambiguous.

Step 3

Read the trust declaration and check to see if there is a “no-contest clause.” Under a no-contest clause, if a beneficiary contests the trust he loses his rights in the trust. Courts will generally uphold these clauses.

Step 4

File a complaint and summons with the clerk of court. The court clerk's office keeps track of all legal documentation filed with the court. The complaint should describe why the trust should be disregarded and what you think should be done with the trust's property. The summons is a written notice of the hearing you will send to the trustee, since the trustee is the legal representative of the trust. Prepare multiple copies of the complaint and summons for your records. At this time, the clerk will establish when the hearing will be held.

Step 5

Notify the trustee of the suit. The summons must be sent to the trustee either through the local sheriff or by certified mail. This is done so you can get "proof of service," or a document that demonstrates the summons was delivered to the trustee. You should also notify the other trust beneficiaries so they are aware of the upcoming hearing.