Death and Taxes - The Blog

Filing a Will in Cook County, Part 2

If you are in Illinois, is there any reason to delay filing a Will in your possession?  I can think of one case where you may wish to wait: where the decedent may have enough contacts with another state that a probate will be initiated in that state, and not in Illinois.  In this case it wouldn't make sense to file the original Will in Illinois and then have to have a copy of the Will admitted in the other state. 

If this is a possibility, the named executor will want to compile a list of the decedent's assets with specific reference to the state where the assets are located.  An example:

Genghis Cohen used to reside in Illinois -- it's where his Will (now in the possession of his attorney) is located.  But Mr. Cohen moved to Florida shortly after his Will was executed, and all of his property is in Florida.  In that case, Mr. Cohen's executor should inform the attorney in possession of the Will NOT to file the Will in Illinois but rather to make arrangements to file the Will in Florida.

Filing a Will in Cook County, Part 1

As I've mentioned before, I'm working on integrating this blog into my regular website, and am expanding the number of articles I will be posting there.  One of my major projects currently underway is a narrative that explains the entire probate process in Cook County, with hypertext links to forms, portions of the Probate Act, etc.  The following is an excerpt from that narrative, detailing the steps needed to file a Will.  Section references are to the Probate Act.

Anyone in possession of a Will of a decedent has a duty to file the Will “immediately” following the decedent’s death.  §6-1(a).  Notice the wording – “a Will,” meaning that it doesn’t matter whether the Will is the LATEST Will of the decedent, or even whether you think the Will is valid.

Yes, you can get in trouble for “secreting” or destroying a Will -- §6-1(b) contains language making these acts felonies, although there are big problems of proof.  The more common problem involves someone (usually an attorney) holding a Will for a client and not knowing that the client has passed away.  Overall, judges tend to understand that the holder of a Will may not know that he or she has the Will or even that the decedent has passed away.

The Will should be filed with the “clerk of the court of the proper county,” which presumably is the county where a probate would take place if needed.  Where would that be?  According to §5-1, it’s…

(a) the county where the decedent has a known place of residence;

(b) if the decedent has no known place of residence in Illinois, the county in which the greater part of the decedent’s real estate is located at the time of his or death; or

(c) if the decedent has no known place of residence and no real estate in Illinois, the county where the greater part of the decedent’s personal estate is located at the time of his or her death.

If the proper county for filing is Cook, you should go to the Clerk’s office on the 12th Floor of the Daley Center (50 West Washington Street in Chicago) with the original Will.  Before going, you should make your own copies of the Will (you won’t get it back – under §6-7, once it’s filed, it belongs to the Clerk) and find out the decedent’s date of death. 

When you file the Will with the Clerk, you’ll be given a receipt, which you should obviously keep with your important records.

Initiating the Probate Process in Cook County, Part 1: Testate Estates

As I've mentioned before, I'm working on integrating this blog into my regular website, and am expanding the number of articles I will be posting there.  One of my major projects currently underway is a narrative that explains the entire probate process in Cook County, with hypertext links to forms, portions of the Probate Act, etc.  The following is an excerpt from that narrative, detailing the steps needed to open a testate estate (that is, an estate where the decedent had a Will).

If it is necessary to probate the decedent’s estate, you will need to take the completed original of the Petition for Probate of Will (CCP 0315) and one copy of the Petition to the Clerk’s office on the 12th Floor of the Daley Center (50 West Washington Street in Chicago).

You will also need to complete the Probate Division Cover sheet (CCP 0199) and bring the appropriate fee.  Fees are based on the value of the probate estate as set forth in the Petition:

If the value of the probate estate is less than $15,000, then the fee is $119.00

If the value of the probate estate is more than $15,000, then the fee is $279.00

The Clerk will take your cover sheet, the original Petition, and the fee, and will give you your stamped copy of the Petition (make sure to ask for this), your case number, and the name of your judge.

Make sure to write the case number for the estate on the rest of the documents being used to open the estate, and on all subsequent documents. Note that Cook County judges for decedent’s estates are assigned randomly – the calendar is as follows (all room numbers are at the Daley Center):

Calendar #2: Judge Budzinski (Chief Judge of the Probate Division), Room 1803

Calendar #8: Judge Coleman, Room 1804

Calendar #7: Judge Kennedy, Room 1802

Calendar #11: Judge Malak, Room 1801

Once you know which Judge will be handling your estate, you should go to the Judge’s courtroom (with your copy of the Petition) and schedule a time to open the estate. Be aware that, according to Cook County Rule of Court 12.3(a), “[a] will must be filed at least 3 court days before the hearing on a petition for admission of the will to probate.”

Medicaid Reimbursement and Estate Claims

The Illinois State Bar Association's Trusts & Estates Section newsletter for November '06 contains a summary of the interesting case of Hines v. Department of Public Aid (850 N.E.2d 148 (2006)).  Hines is an Illinois Supreme Court case that discusses the following scenario:

Husband starts receiving Medicaid payments from Illinois in 1994.

Husband dies in 1997.

Upon Husband's death, Wife inherits his property as surviving joint tenant.

Wife dies in 2001.

May the Illinois Department of Public Aid successfully pursue a claim against Wife's estate for reimbursement of the Medicaid payments made to Husband?  The short answer is "no."  The longer answer involves a look at the Illinois Public Aid Code (305 ILCS 5/5-13) and 42 USC §1396p, a federal statute.  Essentially, the federal statute allows states to recover Medicaid payments from the estate of the person who received the payments but NOT from the estate of such person's spouse.  Illinois could pass a law defining a Medicaid recipient's estate to include property passing from the recipient to the surviving spouse via joint tenancy, but it hasn't yet done so.  I presume that's due to a "bad PR" problem -- "you're taking granddad's house!" -- but I suspect that, as state budgets get squeezed tighter, we're going to see states like Illinois push harder and harder for language allowing these reimbursements.

Timeframes and Cook County Probate

Once a probate estate is opened, is there any timeframe for getting it closed?  Generally, the answer is no.  Each estate's timeframe is going to vary depending on whether there's litigation, whether an estate tax is due, and other similar factors.  Of course, judges LOVE to dispose of estates, and are always moving the attorneys toward the end of the process. The desire to wrap up estates has led the Cook County Probate Court to require a 14-month "checkup."  Essentially, when you open a probate estate in Cook County, you also have to set up a date -- approximately 14 months later -- on which the estate representative will (1) file a final report, (2) file an accounting, or (3) appear in court to explain why the estate is still open.  The hope is that this provision -- which is found in the court form for an order appointing an executor (paragraph 4), but which also applies in cases of intestacy -- will light a fire under estate representatives and their attorneys.

Missing Persons and the Illinois Probate Act

One of the most essential elements of a probate -- the death of the person whose estate you are trying to open -- requires no outside proof under Illinois law.  Instead, the petition for probate includes a statement by the petitioner that the person died, along with the particulars (where, when).

But what if you aren't sure whether the person died?  In some cases, facts and circumstances can create a presumption of death.  Illinois law has specific procedures for handling these cases.  Section 6-20 of the Illinois Probate Act addresses a petition to admit will to probate on presumption of death of testator; §9-6 deals with the same issue in the case of a person who died without a Will (i.e. intestate).

Creditor as Administrator

Section 9-3(j) of the Illinois Probate Act allows a decedent's creditor to act as the administrator of the decedent's estate (but only if there's no one else able and willing to act).  I don't know of many cases where a creditor would want to assume this burden, but it's important to realize that, in doing so, the creditor-administrator assumes all of the regular duties of an administrator.  For instance, the creditor-administrator owes a duty to ALL beneficiaries and creditors of the estate, not just himself.  That includes a duty to maximize the value of estate assets.  A funeral director in Connecticut who was named administrator of a decedent's estate (presumably to get his own bill paid) ran into problems with this issue, as described here:

Bridgeport Probate Judge Paul J. Ganim made clear Monday that he plans close scrutiny of Coventry funeral director Kevin K. Riley's administration of an estate in which a deceased woman's home was sold for $175,000, then resold less than four months later for $305,000.

The Federal Government and Claims

I previously blogged (here) about how claims can be barred if they are not filed in a timely manner.   It would appear from the case of  In re McBride's Estate (249 N.E.2d 266, 110 Ill.App.2d 200 (Ill. App. 1 Dist., 1969)) that the claim statutes of limitations do not apply if the U.S. Government is the claimant.

McBride involved a claim filed by the IRS against an estate.  The claim was filed after the expiration of the 9-month claims period, but the Court allowed the claim, since "it is well settled that the United States is not bound by state statutes of limitation."  I presume that the same rule would apply to a claim filed after the 2-year claim I discussed in the above post.

Thanks to Patrick S. Sylvester for bringing this case to my attention on the ISBA Listserv.

The Evils of Probate?

I've said it before but I'll say it again, because it's so important: probate is not a horrible thing.  This nice article -- by Stephen A. Frost of the law firm Pederson & Houpt -- explains how the evils of probate have been overstated, and gives a nice, easy-to-follow overview of how the process works.

Intestacy Calculator

Want to know who will inherit your Illinois probate property if you die without a Will?  Now the answer to this question is a click away, thanks to Kurt R. Nilson's calculator, which can be found here.  Professor Beyer's write-up of Mr. Nilson's project (here) also lists a number of other states for which calculators are available.