Cary A. Lind, P.C. - Arlington Heights Probate Attorney

THE SAGA OF THE UNDERTAKER'S FAMILY - PART 5

Cary A. Lind, P.C. - Arlington Heights Probate Attorney

THE SAGA OF THE UNDERTAKER'S FAMILY - PART 5

After Helen died, the battle shifted to the Probate court.

Jozef's Estate.

Jozef's will named Helen as executor and Marlene as successor executor. Marlene could not serve, because she was suing Helen. No one in the family stepped up to act after Helen died, so Marlene petitioned to appoint the Cook County Public Administrator as successor representative. That office declined to act, however, because it has limited funding and will not accept appointment in situations where it will expend substantial resources without being paid or where the dispute is primarily among family members. Both were present in this situation. Without the Public Administrator, who would act as representative? After some prodding by the court, Robert agreed to serve.

The next issue was who would account for Helen's tenure as representative. There were two primary options: the representative of Helen's estate or someone else on Helen's behalf. Robert claimed that Jozef's estate had no assets. However, the estate previously had assets. It collected from Marlene on the two matters tried before the jury. It owned the chapel business and its goodwill and had operated the business. It also was a co-owner of record of one-half of the chapel property and was the counter-plaintiff for contribution from Marlene for expenses of the property. In our view, there was also a potential recovery by the estate from its former attorneys for fees to the extent that fees were paid but were not reasonable. I am almost certain that the fees paid to the estate's attorneys for the jury trials were substantially greater than the amounts recovered in those two cases.

On the negative side, the estate was a defendant in the chapel case and owed potential claims to Marlene for its interest in the chapel property and for expenses both prior to and subsequent to Jozef's death.

The decision was postponed pending Robert's motion in the chancery case.

Helen's Estate.

During her lifetime, Helen set up a living trust and transferred her interests in real estate to the trust. Robert told us that he was the successor trustee of the trust, but despite several requests, both he and his attorney refused to furnish a copy of the trust to Marlene. Helen's original will could not be found after her death and was presumed revoked. Marlene petitioned to appoint a representative for Helen's estate. Helen's estate was assigned to the same judge who was handling Jozef's estate. The Public Administrator again declined to act. The family said that Helen had no assets, so that there would be nothing with which to pay the fees and costs of administration. However, Helen's estate was the sole legatee of Jozef's estate.

Marlene was again left with two options: a special administrator or a family member other than Marlene. This time, none of the family agreed to step forward. A special administrator would have to account for Helen's tenure in Jozef's estate and to substitute in the chapel case. Any special administrator would have to be unquestionably independent of Marlene. More significantly, a special administrator would have to be paid, and since Marlene was the one asking for the appointment, she would have to foot the bill until assets were collected in that case, if ever. However, she would then be paying the special administrator to litigate against her! That cannot be right.

The decision was postponed pending Robert's motion in the chancery case.

The Chancery Case.

Robert petitioned to be appointed as a special administrator for Helen in the chancery case. 735 ILCS 5/2-1008(b) controls substitution of parties on the death of a party. That section (which should be read in its entirety) first addresses substitution of a special administrator as a party to prosecute a proceeding if no estate representative is appointed and deals with notice to other interested parties and disposition of any proceeds received.

The same section allows a special administrator to substitute to defend a case if no representative is appointed for the deceased party's estate (in which case the estate representative would be obligated to defend). The last sentence of the section, however, provides that if a special administrator is appointed, "the recovery shall be limited to the proceeds of any liability insurance protecting the estate . . ."

It was clear that Robert could act as special administrator to prosecute Helen's claims in the chapel case. However, it was thus not clear that Robert could properly defend Helen in the case. Marlene certainly did not want to limit her recovery to insurance which did not exist. The proper alternative was to insist that a representative be appointed for Helen's estate in order to defend in the chapel case, and that was our position. However, that choice would create other problems, as noted above, and no representative had yet been so appointed.

The chancery judge decided to defer making his decision pending action by the Probate court, and the matter was continued.

Time Out To Think.

At this point, the situation was truly a puzzler. Any decision or choice made in any of the three cases would have repercussions and would limit or compel choices in the other two cases, and the results were never completely what any of the parties wanted. For example:

  1. If Robert was not appointed representative of Helen's estate but agreed to account for Helen in Jozef's estate, no representative would need to be appointed for Helen's estate, and Robert could be appointed as special administrator in the chancery case. However, Marlene still had a claim against Helen's estate, and a representative would ultimately have to be appointed. Also, if the accounting in Jozef's estate showed that money was misspent in that estate, who would pursue the recovery of the missing funds? Not Robert if he was also representing Helen in a different case.

  2. If Robert was appointed in Jozef's estate but would not account for Helen's tenure as executor, a representative would have to be appointed for Helen's estate to do so, but who? Not Robert. Not Marlene. A special administrator? Apparently so. The special administrator then could substitute in for Helen in the chancery case, and no special administrator would be separately appointed pursuant to Section 1008 for only that litigation. But then, who would pay for Helen's special administrator?

  3. If Robert was not appointed in Jozef's estate, then what?

Everyone was waiting for the rest of the family to decide what to do. The wheels kept spinning. It was a standoff, and nothing was moving ahead.

The Resolution.

As noted above, Robert did agree to serve in Jozef's estate and also agreed to account for Helen's in Jozef's estate. He declined to act as administrator for Helen's estate. Marlene and I decided for now not to incur the costs of a special administrator. We would watch the two-year claim period for Helen's estate and proceed later if necessary. On Marlene's motion, Helen's estate was continued generally, so that it could be utilized later. Finally, Robert was appointed as special administrator in the chapel case. The question of the limits of his ability to defend the case was not yet squarely addressed or decided. To do so would have resulted in more delay and would have left the current situation unresolved.

First Epilogue.

This article brings you up to date to where the proceedings are now. When I began this series of articles, I thought that the matters might be resolved. Marlene and Robert had been on good terms most of their lives. We thought that Robert would be more reasonable than his mother and would settle the case, but he was not. Robert was apparently lured to the dark side with his attorney. The odyssey continues, and the fees continue to mount.

As of now, I believe we will recover all of the proceeds of the chapel sale plus rent from Jozef's estate. What we will be able to collect from Jozef's estate is less clear. Unless that estate recovers something from someone other than Marlene, a victory may be hollow.

I also believe we will be able to obtain a judgment against Helen for her tortious interference with Marlene's expectancy. If the joint tenancy in the premises had not been severed, Marlene would have been the sole owner of the property on Jozef's death and could have assumed all of the rights and responsibilities for the property. Instead, Helen and Marlene ran up huge legal bills. We should be able to pursue Helen's estate for all of Marlene's losses after Jozef's death. The major losses were lost rent and fees.

What is in Helen's estate to collect from? First, there may be a distribution from Jozef's estate that would go to Helen's estate. Second, we may be able to collect from Helen's trust. If the trust contains language authorizing or directing payment of Helen's debts and the claims from her estate, we should be able to compel the trust to pay her estate for those purposes. We ultimately need to compare the sums to be recovered with the expected costs of making the recovery. To date I have not pursued a trust for reimbursement of an estate. This may be my first time.

Second Epilogue.

It helps me to step back and look at the situation in terms of what might be deemed to be "right" and "wrong," not always considered to be a "legal" issue. At first blush, it would appear that Marlene was trying to take advantage of her parents and siblings. However, the other three siblings were all married and reasonably comfortable financially. To the contrary, Marlene was divorced, was putting her only child through college, and could not work because of physical problems caused when she hurt her back taking care of Helen and Jozef. Marlene was the only child who spent substantial time taking care of her parents as their health declined. Marlene would never have disturbed her parents' continued use and occupancy of the chapel property if Helen had not sued Marlene first. There were many reasons (which will not be discussed here) for what happened. Suffice it to say that to some extent, Marlene's siblings other than Robert played a role in Helen's suits against Marlene. Marlene firmly believed that both of her parents intended her to have the chapel property after they were both gone. After Helen filed four separate actions against Marlene, prevented Marlene from having sole ownership of the chapel property, and caused Marlene to spend substantial sums in attorney fees, Marlene was not willing to walk away with only the property or its proceeds. She wanted to recoup a substantial portion of the money she had spent on fees. Even though Marlene reconciled with Helen and was on reasonable, civil terms with Robert, the fight against Marlene continued. Marlene's fight was no longer with her mother but with her siblings.

Helen's attorney disagrees with my assessment of the case and she continues to believe that the result will differ substantially in her client's favor. Robert listens to her, so the case does not settle.

I often tell clients that attorney fees settle more cases than anything else, especially where as here there is a "pot" of assets to be divided. The more fees that are paid, the less of the pot remains to go to the parties. This pot keeps getting smaller.

I plan to let you know what happens.

TO BE CONTINUED

©2004 by Cary A. Lind, all rights reserved.

Cary A. Lind, P.C.
121 South Wilke Road, Suite 407
Arlington Heights, IL 60005
Phone: 847-577-0030
Fax: 847-577-0854
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Cary A. Lind, P.C., is in Arlington Heights, Illinois, and serves clients in places including Arlington Heights, Prospect Heights, Schaumburg, Park Ridge, Rolling Meadows, Barrington, Buffalo Grove, Mount Prospect, Palatine, Wheeling, Elk Grove Village, Cook County, Lake County and DuPage County.

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