Posted by Post Authored By: Brian M. Bentrup
You’ve recently lost a family member or close friend. Shortly thereafter, you come to learn that you’ve been named executor in the decedent’s will, or you have statutory preference to serve as administrator in the event there is no will.
Your head is likely spinning from all of the things that need to be done immediately, much less the formal procedures necessary to open a probate estate. You need to make final arrangements, pay final expenses, and safeguard assets. Perhaps it was your spouse that passed away, you had discussed the inevitable, learned of their final wishes, and know where all of the assets are and how they’re titled. What happens if you lack that familiarity or you didn’t even know you were a named executor? How do you effectively fulfill your duties and obligations? Where do you start?
Even with the assistance of counsel, it may be difficult or impossible to know where all of the decedent’s assets are. Upon appointment, an executor or independent administrator will receive Letters of Office from the county clerk empowering them with the appropriate legal authority to act on behalf of the estate and investigate assets.
Now, imagine, you’ve gone to all the local banks and financial institutions with your Letters of Office and determined there are a checking account, a brokerage, a retirement account and a life insurance policy. You inform your attorney you’ve located all the assets, transferred them to an estate account in the decedent’s name, and transferred those assets to legatees or heirs pursuant to statute. Your attorney appears to close the estate, but a few weeks later, you discover the brokerage account wasn’t distributed and still is titled in the decedent’s name or you find a new brokerage account all together. What happens next?
In Illinois, an estate can be reopened at any point to resolve outstanding issues with the estate. 755 ILCS 5/24-9 of the Illinois Probate Act governs the reopening of a decedent’s estate. According to Section 24-9:
If a decedent’s estate has been closed and the representative discharged, it may be reopened to permit the administration of a newly discovered asset or of an unsettled portion of the estate on the petition of any interested person. If the petition asks the appointment of the former representative or a successor designated by the will, the court may order such notice of the hearing on the petition to be given to any interested persons as it directs or the court may hear the petition without notice. If the petition asks the appointment of a representative other than the one who was acting when the prior administration was completed or a successor designated by the will, notice of the hearing on the petition must be given as the court directs to the former representative and to all persons entitled either to administer or to nominate a person to administer equally with or in preference to the petitioner. No notice need be given to any person who personally appears at the hearing or who files his waiver of notice. On the hearing, the court may vacate the order of discharge or issue letters of office as the case requires. A new bond based on the value of the newly discovered asset or the unsettled portion of the estate and limited to the administration thereof must be furnished as provided by this Act.
Judges are loathed to reopen probate estates. A Cook County judge can find their routine 10:00 a.m. call full of 30 or 40 probate matters. Zoom has had the pronounced effect of significantly adding the judges’ daily calls. There have been several times I checked in via Zoom before the 10:00 a.m. start time and waited over two hours for my matter to be heard. The latest I’ve been called for such a start in the COVID-Zoom court world was 12:30 p.m. Make no mistake about this: judges are exceptionally eager to clear probate matters from their dockets because going through such a voluminous call is a true slog.
This explains why most judges will be vexed at the notion of reopening probate estate. If you do not have your reopening procedure finely tuned, you can expect to receive an earful from a frustrated judge. That judge also has the power to make the administration of the reopened estate unduly difficult. As a word of caution, judges are not likely to forget attorneys who reopen probate estates incorrectly, and this will likely be reflected in future appearances before that judge.
Therefore, it is critically important to understand the next steps. The starting point for all probate matters is the filing of a petition. In this case, it would be a petition to reopen the probate estate of the decedent and should be filed under the prior case number. It should recite the basis for the need to reopen and attach as many documents as the practitioner deems necessary to make it as simple and easy for the judge as possible. Such a petition might attach the following as exhibits: (i) the original petition, (ii) the Order Appointing Representative or similar, (iii) the Order Declaring Heirship, (iv) Letters of Office, and (v) documentation related to the need for reopening. This last item could be a recent statement for the brokerage account still showing as titled in the decedent. It may also be wise to include your client’s correspondence with the financial institution so as to curry favor with the judge and make the client appear less culpable.
Once the petition has been prepared and filed, the standard probate documents should be filed. This means a new Affidavit of Heirship, a new Oath and Bond, Waivers, and, post-appointment, a new publication. To make this process as palatable to your client, it may also be prudent to include the Receipt and Approval as well as the Final Report. This way, all documents necessary to open and close the probate estate can be signed by the executor or administrator at the same time. Understand that the client will be frustrated. This means more time and expense, which adds to their irritation and reduces the amount received from the estate. Emphasizing to the client that these are measures to reduce costs and limiting the scope of probate may help ease that frustration. Of course, there will be likely information added later that is necessary to close, but this can be discussed and explained in a conference with the client. The judge may limit indeed limit the Order Appointing Representative for the sole purpose of administering the assets that was not properly transferred. Once opened, the asset should be transferred as soon as possible in order for the probate matter to be closed. To the extent the practitioner is to blame in whole or in part for the need to reopen, a discounted fee arrangement could be made with the client. In the end, clients are going through a stressful and difficult experience. An attorney’s role extends beyond the purely legal, and involves counsel on a broad spectrum of matters. Leaving the client feely confident in the service provided can produce positive goodwill or future exponential returns. Reopening a probate estate is not something the client, attorney, judge or even county system would like, which makes it paramount to resolve it as quickly as possible, yet while doing so competently.
About the Author:
Brian M. Bentrup is a graduate of Loyola University Chicago where he triple-majored in Economics, Political Science, and Psychology. In 2015, he obtained his law degree from The John Marshall Law School. In law school, Brian was selected to be an extern for the Honorable Laura C. Liu in the Mortgage Foreclosure and Mechanics Lien Division as well as the Illinois Tenant Union.
Brian joined Pluymert, MacDonald, Hargrove & Lee, Ltd. in January 2018. His practice includes estate planning, probate and trust administration, and residential and commercial real estate. Brian also focuses on guardianships of minors and disabled adults and has been named to the approved Guardian ad Litem lists for Cook County, DuPage County, Kane County and Lake County. Brian dedicates time to pro bono work with Chicago Volunteer Legal Services representing or advocating on behalf of minors and disabled adults.
Brian is a member of the American Bar, Illinois State Bar, Cook County Bar, DuPage County Bar, and Chicago Bar Associations. He is also a member of the Justinian Society of Lawyers and the Phi Alpha Delta Law Fraternity.
Brian is licensed to practice in Illinois and Missouri. When not practicing law, Brian enjoys spending time with his wife, daughter and son, and exploring new and different culinary experiences.