FAQs - Probate and Estate Administration

What if you die after a divorce without changing your will?

Answer: A section of the Probate Act steps in and nullifies those parts of the will which make gifts to the former spouse. (755 ILCS 5/4-7(b)).

Illinois statutes also nullify powers of attorney and those terms of revocable trusts which pertain to a former spouse. (755 ILCS 45/2-6(b) and 760 ILCS 35/0.01 et seq.). However, that is not the case with respect to the beneficial interest in a policy of life insurance.

The law does not step in and revoke a designation of a former spouse as a beneficiary. The surest way to change the beneficiary is to complete and submit a formal change of beneficiary. A second-best way would be to include a waiver in the marital settlement agreement. The trick to that, of course, is to make sure the waiver is highly specific lest it will be deemed too vague to be enforceable. A third way is to take some positive step which manifests an intention to change the beneficiary, an uncertain proposition if that "positive step" is something short of formally changing the beneficiary.


What if a child is born after a will has been made, or even after the parent has died?


Answer: In general, that child will be entitled to the same share of the estate that the child would have received had the parent died intestate (that is, without a will). There are exceptions when a will exists and speaks to this point. An after-born child will be entitled to what the will calls for, or disinherited, depending on whether the will makes gifts to after-borns or disinherits them. The statutes will control when the will is silent on the point or there is no will. (755 ILCS 5/2-3 and 755 ILCS 5/4-10).

The Wage Act

The sales representative had this dilemma: He had an offer of new employment that would soon expire. But to collect commissions on sales made in the current year he had to remain with his current employer until April 1st of the next year.

The question was whether he had any tools available, other than his own powers of persuasion, to obtain the commission immediately.

Answer: Probably.

The Illinois Wage Payment and Collection Act ("Wage Act" or "Act"), 820 ILCS 115/1 et seq., classifies earned commission as final compensation for purposes of paying "separated" employees. The commission in this case was, in fact, earned. The sales had been closed. The goods had been received and paid for.

Section 5 of the Act states that the employer "shall pay" the final compensation of a separated employee at the time of separation if possible but in no case later than the next pay day. And there is no except-for language in case the agreement of the parties calls for payment on some other basis. Moreover, an agreement in Illinois incorporates and includes the law of Illinois in effect at the time when the agreement was made unless the agreement clearly excludes such incorporation. The agreement under examination here did not contain that exclusion. Hence, there was a conflict between the agreement that required presence on the payroll until April 1st of the year to come and the Act, and the agreement had to yield to the Act.

That would seem to put the employee in a solid position to accept the new offer of employment and demand his commissions. So why is the answer to the question posed above just "probably"? Because the Act applies only to "Illinois employers." It was far from clear whether there was an "Illinois employer" in this case.

The company was organized under the laws of a state other than Illinois. It had its principal place of business in a state other than Illinois. Its presence in Illinois was largely confined to the presence of its sales representative, an Illinois resident who conducted business from a location in Illinois. Most of the decisional law that bears upon this question is something less than "controlling legal authority." For it comes from the federal trial courts in Chicago and it analyzes the "Illinois employer" question on a case-by-case basis.

We recently made an inroad of sorts on this point before the Illinois Appellate Court. It began with a six-figure money judgment against an out-of-state business executive who was found personally liable for the severance pay of a former employee on the grounds that he had knowingly permitted the true employer to violate the Act by withholding the pay. (Under section 13 of the Act company officers who knowingly permit an employer to violate the Wage Act are deemed to be the employer and are personally liable for the pay.)

There was no question that the true employer in the case was an "Illinois employer": It was a limited liability company organized under Illinois law and it had its only business office in Illinois. The executive contended that he could not be personally liable unless he, too, was as an "Illinois employer," and he could not be an "Illinois employer" because he lived and worked outside Illinois and had virtually no physical contact with Illinois.

The Illinois Appellate Court rejected that contention and affirmed the judgment on the grounds, among others, that his duties as an officer of an Illinois company were sufficient to confer personal jurisdiction over him under our "long-arm" statute and bring him to trial on the question whether he knowingly permitted the true employer to violate the Wage Act.

The upshot is: In order for the Wage Act to apply at all, the true employer (or the employer-in-fact) must be an "Illinois employer," but only the employer-in-fact need be an "Illinois employer."

New Year, New Laws

Wishing you a very happy and prosperous New Year!

For a full list of new Illinois laws click on 2013 Illinois Laws courtesy of Illinois Senate President John Cullerton.

Right to Privacy - Social Networks

Prospective employers would be prohibited from asking job applicants to provide access information (e.g., user name, password) for social media outlets such as Facebook if legislation pending in the Illinois General Assembly becomes law. Maryland has already enacted a law which prohibits that practice, and bills now pending in Springfield would amend the Right to Privacy in the Workplace Act to ban requests for access information to social media. (HB3782, HB 5713).

Disclosure of Mental Health Records 

Some mental health records may now be disclosed without the consent of the patient. Those authorized to disclose without consent are county jails, insurance companies, integrated health systems, State agencies (including the Department of Corrections and the Department of Children and Family Services, to name two). Those authorized to receive the disclosures are hospitals, physicians, therapists, emergency medical personnel (and the members of an “interdisciplinary team“ treating a patient.

Those whose records may be disclosed without consent -- in common parlance: patients -- are “recipients in a program administered or operated by the Department of Healthcare and Family Services or the Department of Human Services.

The records that may be disclosed (and disclosed solely for purposes of treatment and coordination of care) are: services rendered, providers rendering the services, pharmaceuticals prescribed or dispensed, and diagnoses.

All this appears in a new section (section 9.4) added in August of 2011 to the Mental Health and Developmental Disabilities Confidentiality Act. (See PublicAct 097-0515)

 

Tobacco Use Cessation Programs

Insurance coverage for “quit smoking” programs is now mandatory in Illinois by virtue of an amendment to the Illinois Insurance Code that went into effect earlier this year. That is, insurers who provide group accident and health insurance plans must now offer (for additional premium) coverage for the expense of participating in a “tobacco use cessation program.”

Tobacco use is the number one cause of preventable death and disease in Illinois, costing $4.1 billion annually in direct health care costs and another $4.35 billion in lost productivity. (See Public Act 097-0592)

New Illinois Laws

One hundred ninety-four new laws go into effect in Illinois on January 1, 2011. A partial list follows:

Credit History Discrimination: Employers will no longer be able to request credit reports as part of the hiring process nor can they ask about an applicant's credit history in the interview.

Red Light Cameras: All red-light violations will now be reviewed by a police officer, a retired police officer or technician not employed by the company that runs the cameras. An image of the violation must be made available on the Internet, and any municipality or county that uses red light cameras must provide notice to the public by posting the locations of the cameras on their official web site. Finally, a safety impact study must be undertaken to assess the number of accidents at the red light camera monitored intersections.

Unpaid wages: Workers are now allowed to go straight to court to collect their wages plus any legal fees when employers don't pay.

Adoption: Adopted adults no longer need a court order to obtain their birth certificates.

Pet disclosure: Pet stores must inform potential buyers about an animal's health history and the name of the breeder as well as other details.

Commercial Vehicles: Increases the fine to no less than $500 for commercial trucks that fail to display the name of the company on the side of the vehicle.

Fake dope: Outlaws the sale of "Spice" or "K2," a material similar to synthetic marijuana.

Sexting: Teens under 18 face stiffer penalties if they are caught distributing lewd photographs using their cell phones or computers.

Car seats: The fine increases to $75 from $50, for not properly strapping a child into a car seat.

Belt-in passenger: Drivers must adjust and fasten a passenger's safety belt if the passenger is unable to do it.

Bike safety: A new law makes it illegal to "crowd" or threaten a bicyclist by unnecessarily driving a car or truck too close to a bicyclist.

Presidential primary: The date of the presidential primary election moves to the third Tuesday in March in even-numbered years.

New Illinois Laws

Employee Credit Privacy Act -- Effective January 1, 2011. Prohibits Illinois employers from discriminating based on a job seeker or employee's credit history. The new law will remove a significant barrier to employment for the growing segment of the population whose credit history has been affected by the recession. The law forbids employers from inquiring about an applicant or employee's credit history or obtaining a copy of their credit report. The law does not affect an employer's ability to conduct a thorough background investigation that does not contain a credit history or report. Employers who violate the new law can be subject to civil liability for damages or injunctive relief.

Illinois Small Business Tax Credit -- Small businesses that create new jobs between July 1, 2010 and June 30, 2011 may be able to take advantage of a $2,500 tax credit for new hires. The Illinois Small Business Job Creation Tax Credit, signed into law earlier this year, targets the foundation of Illinois' economy - the 500,000 small businesses across the state.

Debt Settlement Consumer Protection Act -- Effective immediately. Establishes stringent guidelines and enhances consumer protections for Illinois families seeking help to pay overdue bills.