Commentary on estate planning, estate administration, and real estate issues from a Chicago-area attorney.
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Next week I'm hoping to post my review of Christopher Buckley's new novel, Supreme Courtship. I recently mentioned Mr. Buckley's novel Boomsday in this blog, and his publisher was nice enough to send me an advance copy of his new work, which will be released September 3rd. I haven't found any probate or estate planning-related passages, but thought people might be intrigued by the plot:
A desperate politician decides (on the spur of the moment, after meeting her only once) to select an attractive, down-to-earth yet inexperienced woman for an important role in American government.
Does that sound like any situation in current American politics?
In Supreme Courtship, the role in question is Supreme Court justice, and woman is America's most popular TV judge, Pepper Cartwright (sort of a cross between Oprah and Judge Judy, but with the looks of Julia Roberts, from how she's described).
This article tells the pretty interesting story of a Will contest. Some of the facts are typical of these types of cases -- a Will signed when the testator may or may not be competent, and charges of undue influence. But there are also some twists (the testator is a former model, the main asset is a crumbling mansion in Dallas). Plus, there are the non-probate-related court actions:
-the men who purportedly exercised undue influence (Mark McCay and Justin Burgess) over Ms. Bendtsen, and their attorney(!), are facing criminal charges for theft (a rarity in these types of cases in Illinois, although I think everyone is becoming more aware of the issue of elder abuse); and
-Messrs. McCay and Burgess have filed a libel lawsuit against Ms. Bendtsen's daughter and The Dallas Morning News.
Professor Beyer has more information on the case here.
"Heir property" is a concept that's new to me -- it's a way of holding property that is somewhat common about African American farmers in the rural south. Basically, the idea is that property is held "by the family." Perhaps, in the distant past, a property was owned by one individual. That individual dies without a Will, so his or her heirs become owners. When they die, their heirs take over. This causes a boatload of problems -- who owns the property? who can sell it or mortgage it? In times when the economy and/or housing market is bad, heir properties risk foreclosure because no one may take responsibility for the property and pay the mortgage.
I've started to encounter "heir property" in more urban settings. One particular recent case of mine involves getting a number of heir properties squared away. Let me illustrate (changing some of the facts):
-Client's mother dies in 2008 without a Will, owning real estate -- she has 3 heirs (her children)
-Client's aunt died in 2002, unmarried and no children, without a Will, owning real estate -- her property passes one-half to client's mother and one-half to client's uncle
-Client's grandfather dies in 1990, widowed with 3 children, without a Will, owning real estate -- his property passes one-third to each of his children
So, in handling the estate of client's mother, we also have to deal with that estate's interest in the estates of her sister (client's aunt) and father (client's grandfather).
This is messy work that's not particularly satisfying for the heirs, who may not inherit much at the present time. But it's important work for the family on a going-forward basis.
I'd like to address one of my pet peeves re. Illinois probate law and how it's carried out. But first, a little background:
Most estates in Illinois are handled via what's called "independent administration." This is the result of a movement in the 1970's to make probate cheaper, faster, and easier. Essentially, the idea is that the court will have minimal involvement in a deceased estate case, doing only a cursory review of documentation when the estate is opened and closed. It's up to the beneficiaries to speak up if they see problems in the case, but generally, if the beneficiaries are happy, the court is happy. This is in marked contrast with what's called "supervised administration," where the personal representative's attorney must ask the court for permission to do just about everything in the estate. Obviously, supervised administration leads to increased attorney time which leads to increased expense for the estate.
But sometimes supervised administration is a good thing. If you don't trust the personal representative, then you may want the additional court supervision. And you can get it, usually -- Section 5/28-4 of the Probate Act sets for the requirements for terminating independent administration. The general rule is as follows:
The court will terminate independent administration (and run the estate via supervised administration) if an "interested person" (heir or legatee) requests it, period, but if the decedent's Will requests independent administration, then the court will terminate independent administration only upon a showing of "good cause."
As a result, in an intestate situation, or a situation where the Will doesn't reference independent administration, you should ALWAYS be able to terminate it. But here's my problem -- notice the language of 5/28-4(a):
Upon petition by any interested person, mailed or delivered to the clerk of the court, the court shall enter an order terminating the independent administration status of the estate, except...
How does the heir or legatee find out about his or her right to terminate independent administration? The personal representative must send notice of this right to each interested person after the estate has been opened. This notice includes a form petition -- for instance, here (as a PDF) is the Cook County form.
But, as a practical matter, what happens when you as an interested person send in the form, asking for termination of independent administration? In my experience, nothing. The statute makes the termination sound automatic, but it isn't. You can mail in your completed petition, and then send letters and make phone calls to the judge until the cows come home, but the judge will not (in my experience) enter the order terminating independent administration until you set the petition on the judge's court call. And, of course, most laypeople don't know how to do that. So now you have to hire an attorney, pay his or her fee, pay the costs associated with the hearing (an appearance filing fee), wait for the hearing, etc. Which sure seems like a lot of work for something that, under the statute, should have been avoided.
In the probate litigation system, there are two separate yet equally important parties: the second wife (who usually inherits the decedent's property), and the children of a prior marriage (who sue her). This is their story. [Clank! Clank!]
I should really apologize for that intro, but felt compelled to do it because my wife is a HUGE Jerry Orbach fan. He's up there with Richard Farnsworth (my wife either doesn't get crushes on young, good-looking actors, or she doesn't tell me about those crushes).
Anywho, Jerry Orbach's son is stirring things up via a letter he wrote to his step-mom, which "somehow" became public. The story is here. I don't think the son comes off looking too great here. From a PR perspective, it's hard to make the surviving spouse look evil because she assisted in organ donation. However, the horror movie fan in me does like the grisly imagery of a dead person having their eyes "shucked out" (I thought the verb "shucked" could only be used for oysters, but maybe it applies to the removal of any slimy thing from where it resides?).
I first became a Christopher Buckley fan in 1995, when I read Thank You For Smoking. Mr. Buckley is a satirist of the first order, and usually turns his eye to Washington politics (his father is William F. Buckley). I recently picked up a copy of Mr. Buckley's most recent novel, Boomsday, which focuses on the coming entitlement crisis. The main character, Cassandra Devine, is a blogger(!) who suggests legislation encouraging Baby Boomers (also referred to here as "The Ungreatest Generation") to take part in "voluntary transitioning" (i.e. suicide). What's in it for the Boomers?
[Ms. Devine's mentor, Terry Tucker:] "You offer people tax breaks. To kill themselves. At age seventy."[Ms. Devine:]"More if they Transition at sixty-five. Yes, a package of incentives. Free medical. Drugs -- all the drugs you want. Boomers love that kind of pork. The big one is no estate tax. Why leave it to Uncle Sam when you can leave it to the kids? That'll get the kids on board. Terry, listen to me. I ran the numbers. By my calculations, if only twenty percent of seventy-seven million Baby Boomers go for it, Social Security, Medicare, Medicaid will be solvent. End of crisis. Tell me that's not worth debating."
I've written extensively, in this blog and on my website, about statutory custodial claims. These types of claims can be filed by family members if they meet certain requirements for the care of a decedent. The statutory language (which has recently been changed -- here is the new language) has always been pretty vague, which is part of the reason why we have the new 1st District case of Estate of Hale (here is the PDF).
This is the sort of legal opinion I like, as it answers specifically a number of questions surrounding statutory custodial claims:
1. How many years of care can be considered? As many years as care was provided (in this case, 9-1/2 years)
2. When does the statute of limitations for such a claim begin to run? Upon the decedent's death
3. Is the amount of the statutory custodial claim reduced by the amount of any fees the claimant received for acting as guardian of the decedent during his or her lifetime? No
This is a fun topic. Are there public policy limits to how you can give away your property in your Will or trust? The answer is yes -- some obvious examples of provisions that would be struck down:
"I leave $50,000 to my son Robert, so long as he divorces his horrible wife Bonnie within one year of my death""I leave my entire estate to Pamela, so long as, within six months of my death, she murders the following individuals:..."
These provisions would be null and void, so Robert gets his money with no need to divorce, and Pamela gets her inheritance without having to go on a killing spree.
A recent 1st District case (an appeal from Cook County) dealt with the question of whether a specific provision should be void as against public policy. The case is Estate of Feinberg, and it's here as a PDF. Basically, Mr. Feinberg's trust left property to his grandchildren, but any grandchild who marries outside the Jewish faith (to a person who doesn't convert in one year after marriage) is disinherited. Oh goy!
This provision was held null and void, because of the long-standing Illinois rule that "testamentary provisions which act as a restraint upon marriage or which encourage divorce are void as against public policy." There is, however, an interesting dissent, which tries to distinguish between the above divorce example and this case.
Thanks as always to Patricia Brosterhous for bringing this case to my attention through her IICLE Estate Planning & Probate Flashpoints. I'll comment on some of the other cases she mentions in the next few days.
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