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).

Information Technology: Cybercrime

A loved one with an entrepreneurial spirit figures to soon be procuring product for his new venture from vendors in China. His situation is far from unique.

This has raised a host of issues relevant to cybercrime (and, for that matter, the subject of online contracting):

•How does one establish that the vendor is who he claims to be?
•Will the transactional documents will remain as drawn, and unaltered?
•Will the goods will be delivered?
A lot of good advice about such concerns, among others, is available at the website of the Internet Crime Complaint Center ("IC3"), a partnership between the Federal Bureau of Investigation and the National White Collar Crime Center that was established in 2000 "to address the ever-increasing incidence of online fraud." (2012 Internet Crime Report, Internet Crime Complaint Center p. 5).


Is cybercrime a big deal?

Here is the data from the most recent year available (2012):

Total complaints received: 289,874

Complaints reporting loss: 114,908

Total loss: $525,441,110.00

Median dollar loss for those reporting a loss: $600.00

Average dollar loss overall: $1,813.00

Average dollar loss for those reporting loss: $4,573.00

Where does Illinois fit in?


It ranks seventh in number of complaints by state (8,297 complaints) and fifth in losses ($14,316,107.72). (California, Florida, and Texas rank 1-2-3 in both those categories.)

Every once in a while, the FBI catches a bad guy. But the principal contribution of IC3 is that it imparts information and education to consumers. In terms of information, it regularly publishes online scam alerts that are available at the above identified web site address.

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."

Probate and Estate Administration - FAQs

What is probate? A court procedure by which a will is proved to be valid or invalid. The term is now understood more broadly to include all matters that entail the administration of estates, guardianships, etc.

What are the advantages of having a will? There are least two advantages to having a will. One, you can give your property away as you want to; if you die without a will, a statute that is part of the Probate Act dictates how the property will be given away. Two, the cost of the premium of a surety bond can be avoided by stating in the will that the executor need not provide security for his/her bond.

What is an executor? A person named in a will to carry out the directions and requests set out in the will. When there is no will, the person who performs this work is called an administrator. The tasks are essentially the same: Open the estate, publish notice, collect the assets, pay the debts, distribute what's left (if anything) to the beneficiaries or the heirs, and close the estate.

Can probate be avoided? Yes, if the estate is small enough (gross value not more than $100,000.00) and some other requirements are met, then in lieu of probate, a so-called small estate affidavit can be prepared and submitted to those who have property of the decedent, and the bills can be paid and the remainder distributed without going through probate. Details about the affidavit appear at 755 ILCS 5/25-1.

What can I do if I am an heir and believe my interests are not being protected? You can ask the court for "supervised" administration of the estate, which would then require the executor or the administrator to seek and obtain the court's permission before taking any action of consequence.

 

Probate Resources

Illinois Compiled Statues, Probate Act of 1975  

 

DuPage County Probate Forms

 

Will County Probate Forms

 

Cook County Probate Division

 

Kane County Circuit Court Forms

 

Lake County Probate Court

 

The BIG Three

The value of a personal injury case - its "settlement value" and its "verdict value" - depends upon the extent to which it possesses three elements:

(1) clear-cut liability,

(2) big damages, and

(3) a solvent defendant.

Damages are of two types: special damages (e.g., medical expenses and lost earnings) and general damages (pain and suffering, disability, disfigurement). In this article the term "big damages" refers to special damages. We know of one case that settled for $6,000.00 although the special damages were confined to a doctor's bill of $25.00, but that almost certainly reflected a determination on the part of the defendant that it made more sense to pay to settle the case than to defend it. As a rule there is a closer correlation between special damages and settlement value. Or to put it another way, a case that entails a $500.00 bill for two-hour trip to the emergency room is not going to support a million-dollar settlement.

A case that possesses all three elements will look like this: Kathleen was a passenger in a car that had stopped for a red light on a clear, dry, sunlit day. A cement mixer owned and operated by a Fortune 500 company rammed into the back of her car. The car was totaled. Kathleen was knocked cold and suffered severe cuts to her face. She was brought by ambulance to a hospital, spent several days in the hospital, and followed up with her doctor on several subsequent occasions. The loss of consciousness implies the prospect of future complications, future medical expense, future pain and suffering. The facial cuts signal disfigurement. Kathleen was retired, and so lost wage was not an element of her case.

A lawsuit was filed. The defendant conducted basic discovery: served interrogatories, collected documents, and took the deposition of Kathleen. Then it invited her to mediation and the case settled for $70,000.00, ten times the amount of Kathleen's medical bills.

In that case, the defendant was solvent and well insured. The liability of the defendant was clear. There was no comparative fault on the part of Kathleen. The special damages were substantial and consisted entirely of readily provable medical expenses. 

Each case below represents a personal injury case lacking one or more of these ingredients:

Case 1: A case recently brought to our attention entailed an attack upon a young man in a parade by a spectator. Liability was clear enough: The unprovoked attack occurred in the presence of many witnesses and produced an arrest. But the would-be defendant was barely employed and uninsured. As for the potential plaintiff, he suffered a facial cut that required four or five stitches, was treated and released from the emergency room, and was looking at a follow-up visit or two with the family doctor. (Lacks big damages and solvent defendant.)

Case 2: Some years ago, a client we will identify as Samantha, a single, attractive, twenty something woman suffered severe facial cuts when she went through the windshield of a car when the driver lost control. He had minimum insurance coverage and no prospects. His insurer quickly offered the limits of his policy, and the adjuster openly acknowledged that those limits fell far short of full compensation. But the driver had no other assets of consequence and the obligation of his insurance company was capped at the limits of his insurance. (Lacks solvent defendant.)

Case 3: A plaintiff who suffered a career-ending knee injury in a truck jackknife attributed the occurrence to faulty brakes on the tractor he was driving and the trailer he was pulling. His co-driver had left this area and taken up residence in a god forsaken corner of a far-away state. But we found him. And we took a statement from him. By his account, there was nothing wrong with the brakes. It was all about black ice. The settlement demand plunged by ninety percent. (Lacks clear-cut liability.)

Don't Assume Anything

Another example of a personal injury case that seems absurd at first glance but makes sense upon reflection: Some time back reports were published about a personal injury case against a school board and the driver of a school bus following an injury to a grammar school student who was hit by a car while crossing the street on his way home from school after getting off the bus. The driver of the car that hit the child was sued, too, but had nothing to do with the school board or the driver of the bus.

So where do the school board the bus driver fit in to this story?

Once the child left the bus, he had to cross the street to get home, and the driver of the bus had a duty to avoid striking the child with the bus, of course, but no duty to assist the child to get across the street. As it happens, the child chose to cross the street in front of the bus, and the driver of the bus waved the child across. The child passed safely in front of the bus but was struck by a car traveling in the next lane. As noted, the bus driver was under no duty to guide and direct the child across the street, but the driver assumed the duty by waving the child across. Once the duty was assumed, the driver was obligated to carry it out with care under pain of liability for negligence on the part of the driver and its principal, the school board.

This subject, liability for negligent performance of an assumed duty, often appears in the context of trips, slips, and falls in snowy and icy places. Landowners are not liable for injuries attributable to natural accumulations of snow and ice. But once they undertake to shovel and plow the ice and snow, they must discharge the duty with care under pain of liability for negligence.

THE GRANDADDY OF ALL FAQs

No question is asked of us more frequently than this question: Can I charge my opponent for my legal fees?

In general, the answer is no: Each party bears and pays his or her own litigation expenses, including attorney's fees. This is known as the "American Rule," as distinct from the "English Rule" -- Loser pays. (The "English Rule" drove the playwright Oscar Wilde into bankruptcy following his failed lawsuit for libel against the Marquess of Queensberry.)

There are exceptions to the "American Rule" when the case entails a contract that calls for fee-shifting, such as an apartment lease, or a statute that does so, such as Title VII of the Civil Rights Act.

A bill now pending in the Illinois Senate would permit fee-shifting in favor of defendants who prevail in lawsuits brought against them in small claims court for enforcement of consumer contracts if the complaint prays for an award of fees in favor of the plaintiff and the defendant was not represented by an attorney when the consumer contract was negotiated. (Senate Bill 1901, Consumer Reciprocal Attorney's Fees Act, sponsor: Sen. Daniel Biss, Skokie).

Other examples of contracts that contain fee-shiftings clauses are potentially infinite. One that stands out was used by a general contractor for its subcontracts. It provided that the litigation expense (including attorney's fees) of the general contractor would be borne and paid by a subcontractor who sued and recovered less than 75 percent of the amount claimed due in the initial complaint.

Statutes which contain fee-shifting clauses include:

Illinois Consumer Fraud and Deceptive Business Practices Act

Illinois Wage Payment and Collection Act

Americans with Disabilities Act

Age Discrimination in Employment Act