December 17, 2008

ACTEC Commentaries on Model Rules of Professional Conduct

The Model Rules of Professional Conduct are a framework for attorney conduct in many states. The problem is that the Model Rules seem to have been written by and for litigation and commercial attorneys, and not by and for estate planning and probate attorneys. Luckily, ACTEC (the American College of Trust and Estate Counsel) has written commentaries on the Model Rules from an estate planning/probate practitioner's perspective. The commentaries are available in book form or online.

ACTEC also has some other helpful materials online, including a great book containing sample engagement letters to be sent to potential clients, here.

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December 16, 2008

Peter Falk and Guardianship

This UPI article states that the daughter of actor Peter Falk -- famous for his roles in "Columbo" and "Wings of Desire" -- is seeking a conservatorship. (Conservatorship is just another word for guardianship.) Catherine Falk says that her father is suffering from Alzheimer's disease and dementia, and she is concerned that he "can easily be deceived into transferring away property."

Guardianships can do a lot of good things, but people tend not to like them -- they are very expensive, very time-consuming, and (as we see from the above) very public. A couple of notes on avoiding guardianship:

1. Guardianship can usually be avoided if the person in question has the appropriate documents. For instance, if you have a living trust, and all of your property is owned by or payable to the trustee of that trust, then no guardianship should be needed if you become disabled. Instead, you would step aside as trustee, and the successor trustee would use all trust assets to care for you.

2. A quick and dirty alternative to a living trust (at least, for purposes of disability) is a power of attorney. Actually, in Illinois, that would be powerS of attorney (one for health care and one for property). These documents allow you to appoint an agent to make health care and property decisions for you if you cannot do so.

However, the key to the above documents is timing. If someone is showing signs of dementia, it may already be too late for them to execute these documents.

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December 10, 2008

Nudge, Shel Silverstein, Smart, and Negotiation

I'm currently reading Nudge: Improving Decisions About Health, Wealth, and Happiness, by the U of C professors Richard Thaler and Cass Sunstein. I'll probably post a review later, but I found one part (on page 77) particularly interesting. The authors are using a Shel Silverstein poem called "Smart" as the basis for an example, and they ask the reader to Google the poem and read it before continuing in the book.

Why not just print the poem? The answer is in a footnote:

Silverstein had originally given Thaler permission to use the poem in an academic paper published in 1985... but the poem is now controlled by his estate, which, after several nudges (otherwise known as desperate pleas), has denied us permission to reprint the poem here. Since we would have been happy to pay royalties, unlike the Web sites you will find via Google, we can only guess that the managers of the estate (to paraphrase the poem) don't know that some is more than none.

There's a lesson here, for executors and anyone involved in a negotiation: you better know what the other party's options are. The people in charge of Silverstein's estate (this guy?) apparently didn't.

December 9, 2008

Transfer of Will

Illinois law imposes a duty on anyone holding an original Will of a deceased person, to file that Will "with the clerk of the court of the proper county." That's usually easy to ascertain, but what if you file a Will in, say, Cook County, Illinois, but then discover that a probate is instead needed in Broward County, Florida? How do you get the Will -- which, upon filing, becomes the property of the Cook County clerk -- down to Florida?

Well, in Cook County, you use this form, which is an application to transfer the Will to another jurisdiction, as well as an order.

Note that this application would be used in cases where no probate has been opened in Cook County. It's possible to have probate proceedings in more than two states, but you'd have to do that via another method.

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December 8, 2008

Illinois Bar Journal Resources

If you are an Illinois estate planning or probate attorney, you may want to check out this month's Illinois Bar Journal. A few things it tackles:

-how to use gifts to reduce Illinois estate taxes;

-FDIC limits for accounts owned by a living trust; and

-whether an adopted child can inherit from a biological parent.

Here is a link, although you need to be a member of the ISBA to see most content.

December 5, 2008

May a non-resident act as Illinois executor?

Here's a question that pops up with some regularity: may someone who does not reside in Illinois act as the executor or administrator of an Illinois probate estate?

The answer is yes, so long as the person is a resident of the U.S. (the U.S. residency requirement is found in Sections 6-13(a) and 9-1 of the Probate Act -- there are a few other basic requirements as well). That being said, the non-resident personal representative has to comply with a couple of restrictions:

1. Section 11-1 of the Probate Act requires a non-resident to file a "designation of resident agent" with the clerk. I usually do this when the estate is opened, and designate myself (as attorney) as the agent for the non-resident personal representative. This means that the non-resident personal representative can be effectively served is a suit is filed against the estate.

2. All administrators have to purchase a bond (an insurance policy on the estate's assets, designed to prevent a rogue administrator from fleeing to Tahiti with assets in hand). Executors don't usually have to do so, but Section 6-13(c) gives the court discretion to require a bond of a non-resident executor. In my experience, courts don't require this bond but instead (at least in Cook County) insist that the order appointing the executor be changed to prevent estate assets from leaving Illinois without a court order.

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December 4, 2008

CBGB Probate Dispute

This ain't no party, this ain't no disco this ain't no fooling around This ain't no mudd club, or C. B. G. B. I ain't got time for that now

-Talking Heads, "Life During Wartime"

The famed NYC club CBGB is in the news in a probate context, according to this New York Times article. The dispute -- between the estate of Hilly Kristal and his ex-wife, Karen Kristal -- centers on rights to the club's name and property. (The club closed in 2006, but the CBGB brand does big business selling merchandise to poseurs.)

The probate issue involves lack of capacity and undue influence, but the twist is that Karen is taking these positions with respect to her own signing of a agreement with Hilly:

In court papers the estate says that Ms. Kristal voluntarily signed over ownership to her former husband in January 2005, just as CBGB was beginning to have troubles with its landlord over unpaid rent, which ultimately led to the club’s closing.

Ms. Kristal said that she had no memory of signing this document, which is also signed by Mr. Kristal, but not by any lawyers or witnesses.

Ms. Kristal suffers from hydrocephalus, according to her lawyers, which can affect short-term memory, and in an interview she repeated many of the same anecdotes numerous times.

Her lawyers argue that even if Ms. Kristal did sign the document, she had been manipulated by her daughter and former husband.

December 3, 2008

Renunciation of a Will, Part 2: Procedures

Yesterday I blogged about the basics of renunciation of a Will. A few procedural points:

1. Renunciation isn't automatic -- you have to petition the court for it, typically within 7 months after the spouse's Will was admitted to probate. The Probate Act says that "In order to renounce a will, the testator's surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation."

2. By renouncing the Will, the surviving spouse loses any benefit given under the Will. So, for instance, if the Will gives the surviving spouse the decedent's car (only), and the surviving spouse renounces the Will, she will get 1/3 or 1/2 of the probate estate but not necessarily the car.

3. What happens to the interests of the Will beneficiaries in the case of renunciation? The Probate Act addresses that:

If a surviving spouse of the testator renounces the will and the legacies to other persons are thereby diminished or increased in value, the court, upon settlement of the estate, shall abate from or add to the legacies in such a manner as to apportion the loss or advantage among the legatees in proportion to the amount and value of their legacies.

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December 2, 2008

Renunciation of a Will, Part 1: The Basics

Let's say you are married, and your husband dies. Even worse, in reviewing his papers, you find that you are left nothing (or a very small amount) in his Will. What are your rights?

One of the most basic rights you have as surviving spouse is the right of renunciation, as set forth in Section 2-8 of the Illinois Probate Act. This allows you to set aside the Will's provisions, and to receive a set portion of your spouse's estate (1/3rd if your spouse leaves a descendant, 1/2 if he doesn't).

A few caveats:

1. The above portions are AFTER the payment of any and all claims. So, if your spouse has a $100,000 probate estate and $80,000 of claims are filed against his estate, you will get 1/3 or 1/2 of $20,000.

2. Renunciation applies only to the probate estate (property your husband owned in his own name at his death). So your husband could have a $100,000 probate estate along with $10,000,000 in non-probate assets (left to a girlfriend?), and you would still only get 1/3 or 1/2 of $20,000.

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December 1, 2008

Cars and Beneficiary Designations

My vote for the most annoying Illinois law is this one, which requires car dealerships to be closed on Sundays. (It should be called "The Lazy Car Salesman Act.")

To be fair, Illinois legislators have finally done something sensible in the motor vehicle area. And it relates to probate! It's Public Act 95-0784 (to be found here), adds the following language to the Illinois Vehicle Code:

The Secretary of State shall designate on the prescribed application form a space where the owner of a vehicle may designate a beneficiary, to whom ownership of the vehicle shall pass in the event of the owner's death.

In other words, you will soon be able to designate a beneficiary for your car, to become owner upon your death. The designation will appear on the Certificate of Title (and, hopefully, will have to be notarized).

This Public Act becomes effective 1/1/09.