Estate Planning & Probate Law FLASHPOINTS September 2020

James W. Hitzeman & Ryan T. Court, Loeb & Loeb LLP, Chicago
312-464-3183 | E-mail James W. Hitzeman | 312-464-3186 | E-mail Ryan T. Court

Below is an excerpt from §5.5 of LITIGATING DISPUTED ESTATES, TRUSTS, GUARDIANSHIPS, AND CHARITABLE BEQUESTS (IICLE®, 2020). Visit here to pre-order your copy of this handbook.

Independent Administration for Accounts of an Estate’s Representative

The independent administration process offers a streamlined approach to estate administration that attempts to speed up the process and reduce costs. The independent administration process does this by eliminating many of the formal requirements of supervised administration. 755 ILCS 5/28-1. Although the court will be involved in the opening and closing of the estate, and although interested persons can petition the court for hearings and orders, in general the administration process takes place without court supervision. 755 ILCS 5/28-5. In particular, in an independent administration, the representative “need not present an account to the court unless an interested person requests court accounting as in supervised administration.” 755 ILCS 5/28-11(a).

This language in §28-11(a) of the Probate Act of 1975, coupled with a general understanding of the streamlined independent administration process, can sometimes lead to misunderstandings by attorneys and fiduciaries. Sometimes in such cases attorneys who have misinterpreted the duties of a representative in an independent administration fail to advise that representative of the representative’s duty to account to interested persons. Although a representative in an independent administration need not file an account with the court unless an interested person requests it, this does not mean that the representative does not have a duty to account to the interested persons in an independent administration. In fact, the Probate Act makes clear that “[a]n independent representative is accountable to all interested persons for his administration and distribution of the estate.” Id. Therefore, unless the representative obtains waivers from interested persons to obtain an order of discharge, the representative must deliver an accounting to all interested persons and file a verified final report with the court stating in part that the representative has provided an inventory and accounting to all interested persons. 755 ILCS 5/28-11(b).

In many cases, the representative in an independent administration will indeed obtain consents from all interested parties to provide a simplified or informal accounting, sometimes only account statements, when the interested persons wish to avoid the expense of the preparation of detailed accounts.

Finally, regardless of what information the representative provides to the court or the interested persons in an accounting, the courts have held that a representative must keep accurate records. The failure to do so creates a strong presumption against the propriety of the representative’s actions. In re Estate of Winston, 99 Ill.App.3d 278, 425 N.E.2d 973, 981, 54 Ill.Dec. 756 (1st Dist. 1981).

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