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List of Forms by Chapter - Chapter 1 — Initial Steps in Advising the Family
- I. [1.1] Introduction
-
II. Arrangements for Anatomical Gifts, Autopsies, Funerals, and Disposition of Remains - [1.2] Authority To Make Decisions
- [1.3] Anatomical Gifts
- [1.4] Gifts Pursuant to Decedent’s Written Instructions
- [1.5] Power of Attorney for Health Care
- [1.6] Gifts Made by Will or Other Instruments
- [1.7] Gifts in Absence of Written Instructions
- [1.8] Inquests and Autopsies
- [1.9] Inquest by Coroner
- [1.10] Mandatory Autopsy and Autopsy Authorized by Agent or Relative
- [1.11] Funeral Arrangements
- [1.12] Disposition of Remains
- [1.13] Written Instructions
- [1.14] Absence of Writing
- III. [1.15] Informing the Family About Estate Administration
- Initial Meeting with the Decedent’s Family
- [1.16] Obtaining the Original Will and Certified Copies of the Death Certificate
- [1.17] Assessment of the Executor’s or Administrator’s Interest and Ability To Manage the Estate
- [1.18] Reviewing the Will and Trust or Intestacy Statute and Discussing the Effect of Inheritance
- [1.19] Determining Whether an Estate Tax Return Will Be Due
- [1.20] Outlining the Probate Process
- [1.21] Explaining the Role of the Attorney
- [1.22] Discussing the Rights of the Surviving Spouse and Minor or Adult Dependent Children
- [1.23] Custodial Claims
- Safe-Deposit Boxes
- [1.24] Access by a Joint Owner, Executor, or Administrator
- [1.25] Access To Obtain an Original Will or Burial Documents
- [1.26] Filing the Original Will
- Jointly Held Assets and Payable-on-Death Accounts
- [1.27] Estate Tax Apportionment
- [1.28] Joint Tenancy Accounts
- [1.29] Stock Held in Joint Tenancy
- [1.30] Real Estate Held Jointly
- [1.31] Payable-on-Death Accounts
- [1.32] Convenience Accounts
- Life Insurance
- [1.33] Identification of the Beneficiaries and Payment of the Proceeds
- [1.34] Estate as Beneficiary
- [1.35] Life Insurance Owned by Decedent on Life of Another
- [1.36] Estate Taxation of Life Insurance
- [1.37] Social Security and Veterans Administration Benefits
- IV. [1.38] Small Estate Affidavit
- V. [1.43] Estate Administration Involving the Court
- [1.44] Summary Administration
- [1.45] Disadvantages
- [1.46] Requirements
- [1.47] Independent Administration
- [1.48] Inventory and Accounting
- [1.49] Final Report and Notice of Probate or Release of Real Estate
- [1.50] Additional Powers of Executor or Administrator
- [1.51] Termination of Independent Administration
- Supervised Administration
- [1.52] Court Supervision
- [1.53] Use in Contentious Estates
- VI. [1.54] Administration — Jurisdiction and Venue
- VII. [1.55] Informal Settlement of the Estate
- VIII. Beginning Tax Issues
- IX. Appendix — Sample Forms
- Chapter 2 — Opening the Probate Estate and Alternatives to Probate
- I. Introduction to Probate
- II. [2.4] Immediate Actions Following Death
- III. Initial Steps for Formal Probate
- [2.11] Identifying the Personal Representative of the Estate
- [2.12] Power of Executor To Act Before Estate Is Opened
- [2.13] Executor as Personal Representative
- [2.14] Administrator as Personal Representative
- [2.15] Administrator To Collect as Personal Representative
- [2.16] Special Administrators and Wrongful-Death Actions
- IV. [2.17] Location and Types of Probate
- V. Opening the Estate in Court
- [2.21] Overview and Practice Considerations
- [2.22] Opening a Testate Estate
- [2.23] Documents and Time Frames for Testate Administration
- [2.24] Proof of Will
- [2.25] Documents and Time Frames for Intestate Administration
- [2.26] Electronic Filing
- [2.27] Notices
- [2.28] Notice to Heirs and Legatees
- Notice to Creditors
- [2.29] Duty To Publish
- [2.30] Duty To Notify All Known Creditors
- [2.31] Proof of Mailing and Public Action
- VI. [2.32] Claims, Awards, Elective Shares, and Contests
- VII. [2.40] Final Considerations
- VIII. Forms
- Small Estate Affidavit
- [2.41] Cook County
- [2.42] DuPage County
- [2.43] Illinois Secretary of State
- [2.44] Lake County
- [2.45] Will County
- [2.46] Affidavit of Heirship-Second Circuit
- [2.47] Exhibit A — Petition for Probate
- [2.48] Designation of Resident Agent
- [2.49] Petition for Probate with the Will Annexed
- [2.50] Notice to Creditors
- [2.51] Order Form for Claims Notice
- [2.52] Acceptance of Office
- [2.53] Waiver of Notice
- [2.54] Surety Bond Application
- [2.55] Proof of Mailing and Publication
- [2.56] Claims Notice
- Chapter 3 — Counseling the Personal Representative, Marshaling Assets, and Inventory
- I. [3.1] Introduction
- II. Counseling the Personal Representative
- [3.2] Responsibilities of a Fiduciary
- [3.3] Terms of the Documents
- [3.4] Court Process
- [3.5] Maintaining Assets
- [3.6] Cash Needs
- Miscellaneous Items
- [3.7] Mail
- [3.8] Credit Cards and Charge Accounts
- [3.9] Annuity Checks
- [3.10] Social Security Checks
- [3.11] Termination of Utilities
- [3.12] Claims Against the Estate
- [3.13] Surviving Spouse’s and Child’s Awards
- [3.14] Vouchers for Disbursements
- [3.15] Cancellation or Assignment of Insurance Policies
- [3.16] Explanatory Letter to the Personal Representative
- III. Attorney’s Responsibilities
- IV. Collecting Information
- V. [3.26] Types of Assets and How To Collect Them
- [3.27] Real Estate
- [3.28] Stocks
- [3.29] Bonds
- [3.30] Savings Bonds
- [3.31] Bank Accounts and Other Cash-Equivalent Accounts
- [3.32] Life Insurance
- [3.33] Tax-Deferred Assets
- [3.34] Automobile
- [3.35] Personal Property
- [3.36] Partnerships
- [3.37] Closely Held Business
- [3.38] Joint Assets
- [3.39] Refunds
- [3.40] Mortgages and Notes
- [3.41] Personal Loans
- [3.42] Miscellaneous Assets
- [3.43] Small Estate Affidavit
- VI. [3.44] Appendix — Sample Forms
- [3.45] Appointment of Agent for Safe-Deposit Box Access or Sale of Personal Property Pursuant to Small Estate Affidavit
- [3.46] Inventory
- [3.47] Affidavit of Domicile
- [3.48] Power of Assignment for Stock
- [3.49] Letter of Direction for Stock
- [3.50] Power of Assignment for Bond
- [3.51] Letter of Direction for Bank Account
- [3.52] Letter to Insurance Company Requesting IRS Form 712
- [3.53] Overview of Duties of Executor and Successor Trustee
- Chapter 4 — Considerations in Advising the Fiduciary After Death
- I. [4.1] Introduction
- II. [4.2] Review of the Controlling Documents
- III. [4.3] Communication with Beneficiaries
- IV. [4.4] Whom Does the Attorney Represent?
- V. [4.5] Role of the Court
- VI. [4.6] Fiduciary’s Duties to Beneficiary
- [4.7] Duty of Loyalty
- [4.8] Duty To Account
- [4.9] Duty To Exercise Reasonable Care
- [4.10] Application of Prudent Investor Rule to Representatives
- [4.11] Duty To Preserve Property
- [4.12] Duty To Disclose and Act Impartially
- Duty To Manage Claims
- [4.13] In General
- [4.14] Presumptively Void Transfers Statute
- VII. [4.15] Deadlines
- VIII. [4.16] Disclaimers
- IX. [4.17] Distributions
- X. [4.18] Joint Bank Accounts
- XI. [4.19] Will and Trust Construction
- XII. Reformation
- XIII. [4.22] Family Settlement Agreements
- XIV. [4.23] Virtual Representation
- XV. [4.24] Distribution of Trust Principal in Further Trust — “Decanting”
- XVI. [4.25] Trust Amendments — Trust Protector Provision
- XVII. [4.26] Appendix — Notice and Delegation of Investment Functions Under 760 ILCS 5/5.1
- Chapter 5 — Claims Against the Estate
- I. [5.1] Introduction
- II. Notification of Creditors
- [5.2] Publication of Claims Notice
- [5.3] Local Rules for Publication of Claims Notice
- [5.4] Cook County
- [5.5] Collar Counties
- [5.6] Downstate Counties
- [5.7] Certificate of Publication
- [5.8] Cook County
- [5.9] Collar Counties
- [5.10] Downstate Counties
- Due Process — Actual Notice
- [5.11] Statutory and Due-Process Requirements
- Requirements of Illinois Claims Statute — Actual Notice
- [5.12] Duty of Representative To Determine Known or Reasonably Ascertainable Creditors
- [5.13] Representative’s Failure To Provide Actual Notice
- [5.14] Duty of Representative To Determine Known or Reasonably Ascertainable Creditor’s Address
- [5.15] Documentation of Action To Determine Reasonably Ascertainable Creditors
- [5.16] Burden of Proof Requirement
- [5.17] Written Notice to Known and Reasonably Ascertainable Creditors of the Decedent
- III. [5.18] Time Limitation for Filing Claim Against Estate
- IV. Legal Requirements of Filing Claim
- V. [5.27] Allowance of Claim
- VI. Disallowance of Claim
- VII. Contested Claims
- VIII. Classification of Claims and Priority of Payment of Claims
- [5.38] Classification of Claims and Effect on Payment of Claims
- [5.39] First-Class Claims — Expenses of Administration
- [5.40] Second-Class Claims — Surviving Spouse’s and Children’s Statutory Awards
- [5.41] Third-Class Claims — Amounts Due the United States
- [5.42] Fourth-Class Claims — Amounts Owed to Employees and Medical Expenses
- [5.43] Fifth-Class Claims — Property Held in Trust by Decedent
- [5.44] Sixth-Class Claims — Debts to the State
- [5.45] Seventh-Class Claims — All Other Claims
- [5.46] Secured Property
- [5.47] Claims of Persons Who Are Minors or Under Disability
- [5.48] Insolvent Estates
- IX. Source of Payment of Claims
- X. Creditor’s Right To Pursue Its Claim
- XI. [5.56] Types of Creditors’ Claims
- Absolute Claims
- [5.57] General Rules
- [5.58] Claims Not Due at Time of Death
- [5.59] Contingent Claims
- Specific Types of Claims
- [5.60] Tort Claims
- [5.61] Contract Claims
- [5.62] Claims Based on Notes and Written Instruments
- [5.63] Claims Based on Loans Made to Decedent Before Death
- [5.64] Claims Based on Oral Loans
- [5.65] Claims Based on Decedent’s Guaranty of Note
- [5.66] Claims Filed by Administrators
- [5.67] Claims of the State Against Children and Adults with Disabilities
- [5.68] Claims of State of Illinois To Recover Medicaid Benefits
- [5.69] Claims for Malpractice
- Related Litigation Action
- [5.70] Death of a Party; Survival of Action; Limitations
- [5.71] Actions Premised on Fraud of Decedent
- [5.72] Actions Against Representative for Contract To Make Will
- XII. [5.73] Custodial Care Claims — Statutory and Otherwise
- XIII. [5.80] Claims Based on Contracts Between Spouses
- XIV. [5.84] Claims Against Nonprobate Property
- [5.85] Joint Tenancy Assets
- [5.86] Totten Trust Accounts
- [5.87] Payable-on-Death Accounts
- [5.88] Living Trusts
- [5.89] Illinois Land Trusts
- [5.90] Spendthrift Trusts
- [5.91] Life Insurance Proceeds
- [5.92] Retirement Accounts
- [5.93] Gifts
- [5.94] Gifts Causa Mortis
- [5.95] Fraudulent Conveyances
- [5.96] Disclaimers
- [5.97] Unadministered Estates
- [5.98] Small Estate Affidavit
- [5.99] Summary Administration
- [5.100] Bond in Lieu of Probate
- [5.101] Claims Against Power of Appointment Property
- [5.102] Supplementary Proceedings — Judgment Creditor
- XV. [5.103] Loans or Advances to Estate
- XVI. [5.104] Family Expense Statute
- XVII. [5.105] Claims in Ancillary Probate Estates
- XVIII. Appendix
- Chapter 6 — Managing Decedent’s Personal and Real Property
- I. Introduction
- [6.1] Scope of Chapter
- [6.2] Statutory Sources of Managerial and Investment Authority
- [6.3] General Duties and Liabilities of Executor
- Breach of Fiduciary Duty
- [6.4] Generally
- [6.5] Damages for Breach of Fiduciary Duty
- [6.6] Protection from Liability
- [6.7] Delegation
- [6.8] Liability for Agents or Advisors
- [6.9] Role of Probate Court
- II. Management of Personal Property
- [6.10] General Comments
- [6.11] Authority To Sell Personal Property
- [6.12] Procedure for Selling Personal Property
- [6.13] Deposit of Personal Estate with Corporate Fiduciary To Reduce Bond
- [6.14] Mortgaging, Pledging, or Leasing Personal Property
- [6.15] Mortgage of Agricultural Commodities
- [6.16] Procedure for Mortgaging, Pledging, or Leasing Personal Property
- [6.17] Completion of Decedent’s Contract To Sell Personal Property
- [6.18] Transfer of Securities
- [6.19] Operation of Decedent’s Business
- III. [6.20] Investment of Estate Assets
- IV. Management of Real Property
- [6.21] General Comments
- [6.22] Real Estate Management Checklist
- [6.23] Administration of Real Property That Qualifies for Special-Use Valuation Election
- [6.24] Leasing Real Property
- Selling or Mortgaging Real Property
- [6.25] Generally
- [6.26] Procedure for Sale or Mortgage of Real Property
- [6.27] Completion of Decedent’s Contract Regarding Real Property
- V. Management of Digital Assets of Decedent
- [6.28] General Comments
- Fiduciary’s Ability to Access Accounts
- [6.29] Online Tools
- [6.30] Terms of Last Will and Testament
- [6.31] Terms-of-Service Agreement
- [6.32] Disclosure of Contents of Electronic Communications
- [6.33] Executor’s Duties for Closing Accounts and Guarding Confidentiality
- [6.34] Cryptocurrency
- VI. Sample Pleadings
- Chapter 7 — Handling Charitable Bequests and Charitable Trusts
- I. [7.1] Introduction
- II. Initial Confirmations
- III. [7.6] Identifying and Administering Restricted Gifts
- IV. [7.13] Identifying What Estate Property Interest Is Subject of Charitable Gift
- V. [7.18] Estate Tax Charitable Deduction — Internal Revenue Code §2055
- [7.19] Unlimited Charitable Deduction
- [7.20] Qualified Charity
- [7.21] Gross Estate Inclusion
- [7.22] Decedent-Donor
- [7.23] Impact of Restricted Gift on Estate Tax Charitable Deduction
- [7.24] Insufficient Estate
- [7.25] Actual Net Receipt
- [7.26] Charging Estate Tax and Administration Expenses
- [7.27] Income Tax Election for Deducting Administration Expenses
- [7.28] Funding Problem — Estate Tax Value Different from Charitable Deduction Value
- [7.29] Charitable Purposes
- [7.30] Power To Choose Charitable Beneficiaries
- [7.31] Indefinite or Discretionary Testamentary Gifts
- [7.32] Conditional and Contingent Testamentary Gifts
- Split-Interest Testamentary Gifts
- [7.33] Marital Deduction Trusts Followed by Gift to Charity
- [7.34] Charitable Remainder Trusts, Pooled Income Funds, and Charitable Lead Trusts
- [7.35] Spouse with Lead Interest in Charitable Remainder Trust
- [7.36] Non-Spouse with Lead Interest
- [7.37] Other Split-Interest Arrangements
- [7.38] Inadvertent Nonqualified Split-Interest Arrangements
- Void or Voidable Testamentary Gifts
- [7.39] Void Testamentary Gifts
- [7.40] Voidable Testamentary Gifts
- [7.41] Pledges
- [7.42] Settlement Agreements and Estate Contests
- Notices of Termination of Tax-Exempt Status, Self-Dealing, Political Activities, and Other Disqualifications
- [7.43] Private Foundation Status, Self-Dealing, and Governing Documents
- [7.44] Tax-Exempt Status Has Not Been Recognized and Timely Notice Is Not Given to Secretary That Tax-Exempt Status Is Being Sought
- [7.45] Foreign Organization Engaged in Self-Dealing
- [7.46] Political Activity
- [7.47] Evidence To Be Filed with Federal Estate Tax Return
- VI. [7.48] Determining Charges or Allocations of Administrative Expenses and Death Taxes
- [7.49] Tax and Expense Apportionment Clause in the Decedent’s Will: What Does It Say?
- [7.50] Equitable Apportionment
- [7.51] The “Stepchild” Charitable Deduction
- [7.52] Illinois Common-Law Equitable Apportionment Rules
- [7.53] Federal Tax Apportionment Rules
- [7.54] Abatement
- [7.55] Deduction for State and Foreign Death Taxes
- VII. Income Tax Considerations
- VIII. [7.59] Registration with Illinois Attorney General
- IX. Opportunities To Enhance Effects of Charitable Gift
- [7.60] Effective Use of Income in Respect of a Decedent
- [7.61] The Pecuniary Trap
- [7.62] Fiduciary’s Discretionary Powers
- [7.63] Disclaimer
- [7.64] Reformation of Split-Interest Gifts Under Internal Revenue Code
- [7.65] Amendment of Private Foundation and Split-Interest Trust by Trustee Under Illinois Statute
- [7.66] Cy Pres — Reformation of Charitable Gift Under Illinois Law
- [7.67] Equitable Deviation
- [7.68] Early Termination of Trust by Statutory Authority
- [7.69] Early Termination of Charitable Trust by Authority of Common Law
- [7.70] Decanting or Transfer to Second Trust
- [7.71] Enforcement of Charitable Purpose
- X. Up Front: Identifying the Not-So-Obvious Traps That May Affect a Charitable Gift
- XI. [7.76] Conclusion
- XII. Appendix
- Chapter 8 — Planning for Death Benefits from Life Insurance and Retirement Arrangements
- I. [8.1] Introduction
- II. Death Benefits Under Qualified Retirement Plans and Individual Retirement Arrangements
- [8.2] Overview
- Minimum Distribution Rules
- [8.3] In General
- [8.4] Uniform Lifetime Table
- [8.5] Deferral After the Participant’s Death
- [8.6] Method for Determining Required Minimum Distributions
- [8.7] Which IRS Table Should You Use?
- [8.8] Computing Required Minimum Distributions
- [8.9] Required Beginning Date — Individual Retirement Arrangements and Five-Percent Owners
- [8.10] Required Beginning Date — Qualified Plans
- [8.11] “Five-Percent Owner” Defined
- [8.12] First Distribution Year
- Post-Death Distribution Rules
- [8.13] In General
- [8.14] Post-Death, Post-Beginning Date Distributions
- [8.15] Post-Death, Pre-Beginning Date Distributions
- [8.16] No Designated Beneficiary
- [8.17] Designated Beneficiary
- [8.18] “Designated Beneficiary” Defined
- [8.19] Designation Date of Designated Beneficiaries
- [8.20] Qualifying Trust Rules
- [8.21] “Qualifying Trust” Defined
- [8.22] Multiple Beneficiaries
- [8.23] What Beneficiaries Must Be Considered
- [8.24] Post-Death, Post-Beginning Date Required Minimum Distribution Computed
- [8.25] Subsequent Death of a Designated Beneficiary
- [8.26] Rules Applicable to a Surviving Spouse
- [8.27] Joint and Last Survivor Table
- [8.28] Required Minimum Distribution to Surviving Spouse
- [8.29] Surviving Spouse Rollover Rules
- [8.30] Non-Spouse Beneficiary Rollover to an Inherited Individual Retirement Arrangement
- [8.31] Separate Account Rule
- [8.32] Roth Individual Retirement Arrangement to Surviving Spouse
- [8.33] Compliance with Minimum Distribution Rules
- [8.34] Creditor Claims
- III. Death Benefits Under Nonqualified Deferred-Compensation Plans
- IV. [8.37] Death-Benefit-Only Plans
- V. [8.38] Stock Options
- VI. [8.39] Section 83 Property
- VII. [8.40] Income Taxation of Life Insurance Proceeds
- VIII. Nontax Issues
- Chapter 9 — Account, Report, and Distribution
- I. Introduction
- II. Current Account and Distribution Prior to Final Account
- III. Final Account — Informal Procedure
- IV. Final Account — Formal Procedure
- Contents, Form, and Attachments
- [9.11] Printed Forms
- Methods for Preparing Accounts
- [9.12] Inventory Method and Form
- [9.13] Chronological Method and Form
- [9.14] Attachments Suggested or Required
- Procedure for Determining Attorney and Representative Fees
- [9.15] As Part of Final Account
- [9.16] Special Petition to Court
- Approval Procedure for Final Account
- [9.17] Notice of Hearing
- [9.18] Final Report
- [9.19] Effect of Current Account
- [9.20] Hearing
- Distribution
- [9.21] Receipt for Distribution
- [9.22] Transfer of Securities After Approval of Final Account
- [9.23] When Receipt for Distribution Is Unobtainable
- [9.24] Report of Distribution
- [9.25] Order Discharging Representative
- [9.26] Discharge of Bond and Sureties
- V. Independent Administration
- VI. Remedies upon Representative’s Failure To Account
- Chapter 10 — Ancillary Administration
- I. Introduction
- II. Ancillary Administration
- [10.5] In General
- [10.6] Must There Be Probate in Illinois?
- [10.7] Ancillary Administration of Personalty — When Required in Illinois
- [10.8] Ancillary Administration of Personalty — When Desired in Illinois
- [10.9] Ancillary Administration of Personalty — Distribution of Personal Estate
- [10.10] Ancillary Administration of Real Estate — When Required in Illinois
- [10.11] Relationship of Ancillary Representative and Domiciliary Representative
- [10.12] Admission of Nonresident’s Will in Illinois by Copy or by Original Proof
- [10.13] Responsibilities and Powers of Ancillary Representative
- [10.14] Claims Against Estate in Ancillary Administration
- [10.15] Ancillary Proceedings — Accounting and Settlement
- Ancillary Administration Procedure and Forms
- [10.16] Petition for Probate of Will and Letters Testamentary
- [10.17] Sample Form of Petition for Probate of Will and Letters Testamentary
- [10.18] Sample Form of Order Admitting Will to Probate
- [10.19] Sample Form of Order Appointing Representative and Approving Bond
- [10.20] Sample Form of Order Appointing Representative and Designating Bond as Required by Statute
- III. Rights of Legal Representative of Nonresident Decedent and Limitation of Legal Representative of Nonresident Decedent with Respect to Illinois Personalty and Realty
- [10.21] Taking Possession of Personal Property of Nonresident Decedent
- [10.22] Sample Form of Affidavit To Obtain Property of Nonresident Decedent
- Foreign Personal Representative for Nonresident Decedent — Rights
- [10.23] Right To Sue in Illinois
- [10.24] Proceedings Against Nonresident Legal Representative
- [10.25] Sale or Mortgage of Real and Personal Property
- [10.26] Sale of Real Estate and Personalty
- [10.27] Sale of Illinois Real Estate Without Illinois Court Approval
- [10.28] Admission of Foreign Will Without Letters of Office
- [10.29] Foreign Will with Power of Sale
- [10.30] Foreign Will Without Power of Sale
- [10.31] Qualification by Foreign Legal Representative
- IV. Duties of Legal Representative of Nonresident Decedent with Respect to Income Taxation of the Illinois Estate
- Chapter 11 — The Effective Use of Disclaimers in Estate Administration
- I. Introduction
- II. The Federal Tax Rules
- In General
- [11.4] “Disclaimers” Defined
- [11.5] Evolution of Internal Revenue Code §2518 and the Applicable Treasury Regulations
- [11.6] Law Applicable to Disclaimers Not Governed by Internal Revenue Code §2518
- [11.7] Effect of a Qualified Disclaimer
- [11.8] Creditors’ Claims
- [11.9] Compliance with State Law
- Requirements for a Valid Disclaimer
- [11.10] Irrevocable and Unqualified
- [11.11] In Writing
- [11.12] Signed by Disclaimant or Another Acting on Disclaimant’s Behalf
- Time Limit
- [11.13] Overview
- [11.14] The Nine-Month Rule
- [11.15] Commencement of Disclaimer Period
- [11.16] Disclaimers of Jointly Owned Property
- [11.17] Other Situations
- [11.18] Planning Considerations
- No Acceptance of Benefits
- [11.19] Actions by a Prospective Disclaimant
- [11.20] Acts indicating acceptance
- [11.21] Acts not indicating acceptance
- [11.22] Actions by Fiduciaries
- No Direction by Disclaimant of Enjoyment of Disclaimed Interest
- [11.23] In General
- [11.24] To Someone Other than the Disclaimant
- [11.25] Without Direction
- [11.26] Disclaimer of Powers by Fiduciary
- [11.27] Disclaimer by Surviving Spouse
- [11.28] Partial Failure of Disclaimer by Disclaimant Other than Surviving Spouse
- [11.29] Effect of Precatory Language in Disclaimer
- Disclaimers of Less than an Entire Interest
- [11.30] Separate Interests
- [11.31] Severable Property
- [11.32] Powers of Appointment
- [11.33] Nominal Interests
- [11.34] Separate Interests in Specific Trust Assets
- [11.35] Disclaimer of an Undivided Portion
- [11.36] Disclaimer of a Pecuniary Amount
- [11.37] Simultaneous Application of Various Disclaimer Rules
- III. [11.38] Planning for Disclaimers — Drafting Considerations
- IV. Postmortem Planning with Disclaimers
- V. Problem Areas in Disclaimer Planning
- [11.43] Inability To Cut Back a Power
- [11.44] Inability To Disclaim What You Already Own
- [11.45] Inability of Minor, Unborn, or Unascertained Remainderpersons To Disclaim
- [11.46] Beneficiaries’ Reluctance To Reduce Their Interests
- [11.47] Disclaimers of a Pecuniary Amount in Trust
- [11.48] The Difficulty in Anticipating Why a Disclaimer Might Be Needed
- [11.49] Difficulty with Formula Disclaimers of Formula Bequests
- VI. [11.50] Drafting a Disclaimer
- VII. [11.51] Appendix: Sample Disclaimer
- Chapter 12 — Attorneys’ and Representatives’ Fees
- I. [12.1] Scope of Chapter
- II. Attorneys’ Fees
- [12.2] Statutory Guidelines
- [12.3] Liability for Attorneys’ Fees
- Entitlement to Fees
- [12.4] In General
- [12.5] Parties Served
- [12.6] Assets Administered
- [12.7] Fees for Estate Litigation
- [12.8] Will Contest
- [12.9] Will Construction Suit — Trial Court
- [12.10] Will Construction Suit — Appellate Court
- [12.11] Unnecessary Litigation
- [12.12] Actions Against Estate’s Representative
- [12.13] Pending Actions Brought by or Against Decedent Prior to Death
- [12.14] Fees for Time Expended in Collection of Fees
- [12.15] Fees for Services of Personal Benefit to Representative
- [12.16] Fees for Multiple Counsel
- [12.17] Fees and Best Interests of Estate
- [12.18] Parameters of Reasonable Fee Award
- [12.19] Elements of Value
- Proof of Value
- [12.20] In General
- [12.21] Expert Testimony
- Time Records
- [12.22] Why Record
- [12.23] What To Record
- [12.24] Percentage Fee Schedules
- [12.25] Fee Agreements
- [12.26] Independent Judgment of Trial Court
- [12.27] Fee Claim on Appeal
- [12.28] Timing of Appeal
- [12.29] Standard of Appellate Review
- Mechanics of Attorneys’ Fees Claim
- [12.30] In General
- [12.31] Time for Filing Fee Claim
- [12.32] Claim for Credit for Attorneys’ Fees by Representative
- [12.33] Petition for Fees by Attorney
- [12.34] Recovery of Excessive Fees Paid by Estate
- [12.35] Fees upon Discharge or Withdrawal of Attorney
- [12.36] Practice Suggestions
- III. Representatives’ Fees
- [12.37] Statutory Guidelines
- [12.38] Relationships Between Attorneys’ Fees and Representatives’ Fees
- [12.39] Factors That Reduce Representatives’ Fees
- Fee Schedules of Corporate Representatives
- [12.40] In General
- [12.41] Standing as Evidence
- [12.42] Obvious Lesson: Document Fee’s Reasonableness
- [12.43] Mechanics of Representatives’ Fees Claim
- [12.44] Practice Suggestions
- IV. [12.45] Form of Engagement Letter
- Sarah M. Barnes
Sarah M. Barnes
Sarah M. Barnes is a Partner at Harrison, LLP, in Chicago, where she concentrates her practice in trust and estate administration. Barnes is a member of the planning committee for IICLE’s annual Estate Planning Short Course, and she belongs to the Chicago Bar Association, where she is a member of its Probate Practice Committee. She is recognized in Best Lawyers: Ones to Watch in America (2024, 2025). Barnes received her B.A from Michigan State University and her J.D. from Chicago-Kent College of Law.
- Jessica L. Berger
Jessica L. Berger
Jessica L. Berger is Of Counsel at Harrison & Held, LLP, in Chicago, and focuses her practice on private wealth services. Ms. Berger is an adjunct professor at The John Marshall Law School for the Estate and Tax LLM Program (2015 – present). She also has been selected as a Rising Star in trust and estate litigation by Super Lawyers (2017 – present) and an Emerging Lawyer by Leading Lawyers in trust, will, and estate planning (2015 – present). Ms. Berger received her J.D. from Indiana University Maurer School of Law and her B.A. from the University of Maryland.
- Richard A. Campbell
Richard A. Campbell
Richard A. Campbell is a Partner at Mayer Brown LLP in Chicago, where he concentrates his practice in private clients and trusts and estates. He is a Fellow of the American College of Trust and Estate Counsel and has been selected as one of the top 100 Super Lawyers in Illinois and as one of the top 5 percent of Illinois lawyers in estate planning by the Leading Lawyers of America Network. Mr. Campbell received his B.S. summa cum laude from the University of Illinois and his J.D. from the University of Illinois College of Law, where he was Editor of the University of Illinois Law Review.
- Lorraine K. Cavataio
Lorraine K. Cavataio
Lorraine K. Cavataio is a Shareholder at Sandberg Phoenix & von Gontard P.C., in its O’Fallon office. She focuses her practice on business law, estate planning, estate and trust administration, litigation, and real estate. She is a Certified Public Accountant and a Fellow of the American College of Trust and Estate Counsel. She has been chosen as a Super Lawyer (2015 – 2022) and is listed as part of the Estate Planning and Probate Division for Illinois. Ms. Cavataio received her B.S. from the University of Kansas and her J.D. from the Washington University School of Law.
- Mary C. Downie
Mary C. Downie
Mary C. Downie is Executive Vice President and Assistant General Counsel at The Northern Trust Company, in Chicago, where she advises Northern Trust, as trustee and in its corporate capacity, on complex legal, fiduciary, and regulatory issues involving trusts, decedents’ estates, and guardianship estates. She is a Fellow of the American College of Trust and Estate Counsel since 2008 and a member of the American Bankers Association. Ms. Downie received her B.A. summa cum laude from Albion College, where she was a Fellow, and her J.D. magna cum laude from the University of Illinois Chicago School of Law, where she was a member of the Law Review.
- Elizabeth A. Garlovsky
Elizabeth A. Garlovsky
Elizabeth A. Garlovsky is a Partner at Harrison, LLP, in Chicago, where she focuses her practice on estate planning and trust administration. She is a Fellow of the American College of Trust and Estate Counsel. Garlovsky is also a member of the Board of Directors for IICLE and Cochair of the planning committee for IICLE’s annual Estate Planning Short Course. She received her B.A. from the University of Illinois Urbana-Champaign and her J.D. from Loyola University Chicago School of Law.
- Thomas G. Hamill
Thomas G. Hamill
Thomas G. Hamill is a Partner at Harrison & Held, LLP, in Springfield, where he focuses on estate planning, probate and trust administration, gifting strategies, and business succession planning. He is a member of the Illinois State Bar Association and the Sangamon Valley Estate Planning Council. Mr. Hamill received his B.A. from the University of Illinois at Urbana-Champaign, where he was a member of Phi Beta Kappa, and his J.D. cum laude from the University of Illinois College of Law.
- Thomas F. Hartzell
Thomas F. Hartzell
Thomas F. Hartzell is a Partner at Tucker, Hartzell & Bryant in Carthage and concentrates his practice in estate planning and probate, taxation, real estate, business law, and agriculture law. He is a member of the American Bar Association, the Hancock County Bar Association, and the Agricultural Law Section Council of the Illinois State Bar Association. He has written articles for the Agricultural Law and General Practice, Solo & Small Firm Section Councils. Mr. Hartzell received his B.S. from Illinois Wesleyan University and his J.D. from the Southern Illinois University School of Law.
- Patricia A. Hoke
Patricia A. Hoke
Patricia A. Hoke is a Partner in the firm of Barrett, Twomey, Broom, Hughes & Hoke, LLP, in Carbondale, where she focuses on general civil practice with an emphasis on estate planning and administration. She is an adjunct professor at Southern Illinois University. Hoke is a past member and Past Chair of the IICLE® Board of Directors, as well as a recipient of the IICLE Addis Hull Award. She is a member of the Jackson County, Illinois State, and American Bar Associations. Hoke earned her B.S. and M.Acc. from Southern Illinois University and her J.D. magna cum laude from Southern Illinois University School of Law.
- Nicholas R. Houska
Nicholas R. Houska
Nicholas R. Houska is a Partner at Wood, DeVary & Armstrong, P.C., in Bloomington, where he focuses on trusts and estates. Mr. Houska received his B.A. from the University of Illinois and his J.D. cum laude from the University of Illinois College of Law.
- Joshua B. Hutkins
Joshua B. Hutkins
Joshua B. Hutkins is a Shareholder at Sandberg Phoenix & von Gontard P.C., in O’Fallon, and concentrates his practice on estates and trusts. He received his B.A. from Lindenwood University and his J.D. from the University of Missouri — Kansas City School of Law, where he was held memberships in Delta Theta Phi, the Kansas City Tax Clinic, and the Estate Planning and Drafting Clinic.
- Jennifer A. Johnson
Jennifer A. Johnson
Jennifer A. Johnson is a Senior Director at Huck Bouma PC in Wheaton, where she focuses on estate planning, estate administration, guardianship, and closely held business planning. She is a member of the Illinois State, DuPage County, and Kane County Bar Associations. She is a member of the Real Property, Probate and Trust Law Section of the American Bar Association. Ms. Johnson received her B.A. from Northern Illinois University, her M.A. from the University of Illinois, and her J.D. from Harvard Law School.
- Brian K. Jones
Brian K. Jones
Brian K. Jones is a Partner at Harrison & Held, LLP, in Chicago and Naples, Florida, and concentrates his practice on estate planning and administration. Mr. Jones received the Chicago Bar Foundation’s Maurice Weigle Exceptional Young Lawyer Award (2014) and has been named by Leading Lawyers as an Emerging Lawyer (2014 – 2019) and by Super Lawyers as an Illinois Rising Star (2011 – 2013, 2015 – 2018). He earned his J.D. from The John Marshall Law School and his B.A. from Eastern Illinois University.
- Kim Kamin
Kim Kamin
Kim Kamin is the Principal and Chief Wealth Strategist Member at Gresham Partners, LLC, in Chicago. She leads the development and implementation of estate, wealth transfer, philanthropic, educational, and fiduciary planning activities. Ms. Kamin is a Regent of the American College of Trust and Estate Counsel, serves on the Editorial Advisory Board of Trusts and Estates Magazine, is an adjunct professor at the Northwestern University Pritzker School of Law, where she was awarded the William M. Trumbull Lectureship, and is Past President of the Chicago Estate Planning Council. Ms. Kamin received her B.A. with distinction and departmental honors from Stanford University and her J.D. from the University of Chicago Law School.
- David M. Lutrey
David M. Lutrey
David M. Lutrey is a Partner at Lesser Lutrey Pasquesi & Howe, LLP, in Lake Forest, where he focuses on trust and estate planning administration and litigation. He is a Fellow of the American College of Trust and Estate Counsel and a Past Chair of Legislation Committee of the Illinois State Bar Association’s Trusts and Estates Committee. He has been named a Super Lawyer since 2014. Mr. Lutrey received his B.S. from the University of Illinois, his M.B.A. from the DePaul University Kellstadt Graduate School of Management, and his J.D. from the DePaul University College of Law.
- Timothy S. Midura
Timothy S. Midura
Timothy S. Midura is an attorney at Huck Bouma PC in Wheaton, where he focuses on estate planning and administration. He is also a certified public accountant. In addition to his J.D., he has an LL.M. in taxation and an undergraduate degree in accountancy and finance.
- Michael E. Morden
Michael E. Morden
Michael E. Morden is a Partner at Honigman LLP, in Chicago, and focuses his practice on private clients. Mr. Morden received his B.A. from the University of Michigan, his LL.M. from the New York University School of Law, and his J.D. from the University of Michigan Law School.
- Gina E. Oderda
Gina E. Oderda
Gina E. Oderda is a Wealth Strategist at Cresset Capital in Chicago, where she helps clients with tax and estate planning. She is a member of the Chicago Estate Planning Council and Lyric Opera’s Planned Giving Advisory Council. Ms. Oderda received her B.A. magna cum laude from Menlo College and her J.D. cum laude from Duke University School of Law.
- Stacy E. Singer
Stacy E. Singer
Stacy E. Singer is the National Practice Leader for Trust & Wealth Advisory for the Northern Trust Company in Chicago. She is a Fellow and Illinois State Chair of the American College of Trust and Estate Counsel, a Past President of the Chicago Estate Planning Council, and the Secretary for IICLE® Board of Directors. Ms. Singer received her B.A. from the University of Michigan and her J.D. from the University of Michigan Law School.
- Casey L. Twomey
Casey L. Twomey
Casey L. Twomeyis a founding member at Sanders & Twomey, LLC, in Marion, where she focuses on probate, estate planning, real estate, business, and eminent domain. She has been selected as a Leading Lawyers’ Emerging Lawyer (2017, 2018). She is a member of the Illinois State Bar Association and a past President of the Jackson County Bar Association. Ms. Twomey received her B.A. cum laude from Southern Illinois University and her J.D. from the Southern Illinois University School of Law.
Estate Administration Fundamentals (ARCHIVED 2019 EDITION)
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