Can I Contest the Probate of My Wife's Estate in Illinois After 4 Years?

Full question:

my wife died 4 yrs. ago without a will I gave her father power of attorney to settle the estate as I was unable to be in town to settle estate It was my understanding that she owned a third of a family business there was never any mention of this in the probate papers I signed off on her father is in possession of some of my,undeniable, property and is withholding it subject to her sons wishes ? do I have any way of finding out if she did in fact own a third and if he transferred her shares back to the sub-s corp. without my knowledge and would thst be legal in illinois value of business was approx. 2 million, also if he did is there any way of re-opening the probate. thank youhal

• Category: Wills and Estates
• Subcategory: Will Contests
• Date: 04/07/2025
• State: Illinois

Answer:

The answer would depend on the terms of the contracts involved and what was to happen to her shares upon death. Generally, claims against an estate in Illinois must be filed within 6 months after the estate is opened. However, fraud may extend the period. Fiduciaries, such as trustees, owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.

The elements of a cause of action for breach of fiduciary duty are:

(1) Plaintiff and Defendant share a relationship whereby:

(a) Plaintiff reposes trust and confidence in Defendant, and

(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;

(2) Defendant breaches its duties to Plaintiff; and

(3) Plaintiff suffers damages.

The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:

(1) The passing of the statute of limitations for filing the claim.

(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)

(3) Lack of standing

(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)

(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)

We suggest you consult a local attorney who can review all the facts and documents involved.