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Estate Planning & Probate Law FLASHPOINTS April 2019

April 15, 2019Print This Post Print This Post

Elizabeth A. Garlovsky, Lesser Lutrey Pasquesi & Howe LLP, Lake Forest
847-235-6745 | E-mail Elizabeth A. Garlovsky

New Author: Elizabeth A. Garlovsky

Welcome to the April issue of FLASHPOINTS: Estate Planning & Probate Law. My name is Elizabeth A. Garlovsky (although most people call me “Lizzy,” and you can too), and I am the new author of this monthly article. I would like to take a moment to recognize the outgoing author, Janet Rae Montgomery, and thank her for recommending me to take over this “post.” I have known Janet for many years as not only a colleague and an asset to the trust and estate community, but also as a friend. I hope you will find my content as valuable as Janet’s and will continue to read FLASHPOINTS. I have some tough shoes to fill. So here goes . . .

Changes to Trusts, Estates, and Guardianships Statutes Since June 2018

Several statutory changes affecting trusts, estates, and guardianships have gone into effect since June 2018. If you have ongoing estates open in court, be aware that changes have been made, for example, with respect to claims against estates:

Second-Class Claims. Effective June 1, 2018, §§15-1 (Spouse’s Award) and 15-2 (Child Awards) of the Probate Act of 1975, 755 ILCS 5/1-1, et seq., require that certain notices must be provided to a decedent’s adult children who may have been financially dependent on the decedent and, therefore, entitled to a child’s award. The award may be payable to a surviving spouse or other individual depending on whether the decedent was married to the child’s surviving parent and with whom the child was living. The estate representative (or affiant under a small estate affidavit) must send notice of the availability of the award. The adult child (or someone on her or his behalf) must send written notice back within 30 days to be eligible to receive the award. If notice is not returned within 30 days, the award can be barred.

Within 30 days of the surviving spouse or adult child receiving written notice of this potential award from the representative of the decedent’s estate or from the affiant under a small estate affidavit pursuant to Section 25-1, the surviving spouse or the adult child, or the adult child’s agent or guardian or other adult on behalf of the adult child, shall provide written notice to the representative or affiant asserting that the adult child was financially dependent on the decedent at the time of the decedent’s death. Failure to provide written notice to the representative or affiant within 30 days after receiving notice from the representative or affiant shall be a bar to the right to receive the award. 755 ILCS 5/15-1(a-5).

See also 755 ILCS 5/15-2(b-5).

Fourth-Class Claims. Effective August 24, 2018, 755 ILCS 5/18-10 was modified to expand the definition of fourth-class claims:

Sec. 18-10. Classification of claims against decedent’s estate. All claims against the estate of a decedent are divided into classes in the manner following:

* * *

4th: Reasonable and necessary medical, hospital, and nursing home expenses for the care of the decedent during the year immediately preceding death; and money due employees of the decedent of not more than $800 for each claimant for services rendered within 4 months prior to the decedent’s death. [Emphasis added.] 755 ILCS 5/18-10.

(The prior statute only applied to “[m]oney due employees of the decedent of not more than $800 for each claimant for services rendered within 4 months prior to the decedent’s death.” 755 ILCS 5/18-10 (2018))

Illinois Land Title Association Has Big Win Against Cook County Recorder in Court

Probate and real estate attorneys in Cook County breathed a sigh of relief (at least for now) when a Cook County judge granted the Illinois Land Title Association’s (ILTA’s) motion for summary judgment on its complaint for mandamus against the Cook County Recorder of Deeds. Beginning some time last year, the Recorder of Deeds unilaterally began refusing to record documents establishing heirship without a court order. This caused an uproar for practitioners who routinely recorded affidavits of heirship (or similar documents) as a means to transfer title to real estate when probate was otherwise unnecessary and use a “bond in lieu of probate.” There is no word yet as to whether the Recorder of Deeds plans to appeal.

Even in Death, You Can’t Have Your Cake and Eat It Too

In a recent case, a judicial determination of a premarital agreement as illusory and void after death restored spousal rights under the Probate Act and extended time allowed for the spouse to renounce the decedent’s will. In In re Estate of Cerami, 2018 IL App (1st) 172073, a decedent and his soon-to-be bride entered into a premarital agreement in 1993. They married shortly thereafter and stayed married for almost 20 years until his death in 2013. After the decedent’s death, the surviving spouse (and stepmother to the decedent’s three adult children) filed for letters of administration and opened a probate estate. The spouse later filed certain claims against the estate including for the decedent’s breach (actually breaches) of the premarital agreement. The decedent’s son moved to dismiss the spouse’s letters of administration and filed a cross-petition for probate. The son was appointed as independent executor, and the decedent’s will was admitted (almost two years had elapsed since the decedent died).

Significant litigation ensued over the breaches of the premarital agreement. The son, as executor, attempted to enforce the agreement while at the same time denying the spouse any rights under the Probate Act. The court found that the decedent violated the agreement to such an extent that it was almost impossible to calculate the damages to the spouse. The court ultimately entered an order setting the entire agreement aside. As part of its order, the court specifically found that the spouse’s right under the Act were restored (as of the date of the order) and that she now had a right to renounce the will. The executor failed to appeal the order but later moved to dismiss the claim filed by the spouse to renounce the will as “untimely.” The appellate court held that the spouse did timely file her claim to renounce and the timeliness was determined as of the date of trial court’s order granting her the right to file it.

While this opinion is categorized as “not yet released” by the appellate court, it has since been cited by at least one other case. Below is an excerpt from the opinion of the Honorable James G. Riley (Ret.):

In 20 years on the bench, I can’t remember a single case that has bothered me more than this premarital agreement. The Estate wishes to fully enforce everything that they have against the wife and use this premarital agreement as an absolute sword to preclude her from taking any probate issue whatsoever. It stops her from renouncing, it stops her from taking her custodial share or statutory custodial claim, and it stops her from taking her spousal claim; yet I have nothing but three days of trial of breach, breach, breach, breach, breach by James. And it says “willingness to accept the provisions of this agreement.” I don’t think James ever was thought to be bound by this agreement. We’ve been sitting here in the middle of trial, I’ve continued the case for briefs on damages. It’s almost — almost — impossible to the prove damages, although we’ve proven breach.

I’m taking the very unusual step at this time. I’m declaring the entire premarital agreement as void. Void, because it was illusory on behalf of James. And I’m establishing all rights left unto the wife to do as she sees fit underneath the Probate Act. . . . That’s my order today. 2018 IL App (1st) 172073 at ¶14.

Buzzer Beater: Sister-in-Law of Decedent Determined To Have Standing To File Will Contest To Invalidate Death-Bed Will

In In re Estate of Lay, 2018 IL App (3d) 170378, 115 N.E.3d 403, 425 Ill.Dec. 848, the decedent, the day before he died of lung cancer, and while purportedly in hospice care, the decedent had executed a will leaving his entire estate to one individual and naming the same person as executor. After his death, the will was swiftly admitted to probate. Thirty-seven years had passed since the decedent executed his prior and only other will. The prior will left his estate to the siblings of the decedent’s late wife and named one of them as the executor. That sibling filed a will contest one day before the six-month period to contest expired. The executor filed a motion to dismiss the petition, claiming the sister-in-law lacked standing as an interested party under the Probate Act. The trial court agreed, but the appellate court did not. The sister-in-law was found to have standing, and the trial court erred in granting the motion to dismiss.

Until next month, and to quote Janet, “Hope this helps you to help others.”

For more information about estate planning and probate, see ASSET PROTECTION PLANNING — 2018 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


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