Finding And Recovering Assets – Citation Proceedings – Part 2

The statute provides for two different kinds of Citations: discovery and recovery. The key difference is the goal of the Citation. In a Citation for Discovery the goal is just that – to discover information. The procedure is and is meant to be a “fishing expedition.” In Cook County, once the Citation is properly before the court, the parties usually handle the Citation examination in an attorney’s office as if it were a discovery deposition. The court does not usually get involved at this stage unless one party requests testimony to be taken in court or unless there are serious disputes that cannot be worked out between the parties. Because no relief is sought directly against the respondent, there is no right to a jury trial. Upon conclusion of the Citation for Discovery, the respondent must be discharged unless the Citation is converted to one for recovery or a separate Citation for Recovery is filed.

The Citation for Recovery is similar to an ordinary lawsuit in that the estate seeks to recover assets or money from the respondent. The Petition for Citation for Recovery must allege facts, the legal theories on which the recovery is based, and the specific property that is sought to be recovered. There should be responsive pleadings, discovery, and other motions and proceedings as in any other lawsuit. Either party may ask for a jury trial pursuant to §16-3 when the jury is called on to decide “questions of title, claims of adverse title and the right of property.” That is the case in recovery Citations.

Whether the Citation is for discovery or recovery, the procedure is the same. The representative (or other petitioner) must petition the court for issuance of the Citation. I usually serve the notice of motion on the respondent in addition to any other necessary parties. Often he or she will show up in court and voluntarily appear. If the respondent does not appear or waive service, the Citation together with the petition must then be served on the respondent. The Citation is given a return date at the time the petition is presented. If service is not made, subsequent alias Citations can be issued until service is made. On the return date after service is made, the court will typically set a further status date, a trial date, or both.

Much subject matter encountered in Citation proceedings has been dealt with in prior Estate Department articles. See Joint Tenancies – See You In Court, Breach of Fiduciary Duty -Who Do You Trust, Dead-Man’s Act, Hearsay, and Other Dull Subjects, and Putting It Together. All of the articles can be found at in the section entitled Estate Department. The articles deal with the substantive and procedural problems that both sides face.

The estate bears the initial burden of proof of establishing that the decedent owned each particular asset for which recovery is sought. Once that burden is met, the respondent then has the burden of proving a right superior to the estate to retain the assets. As discussed in the above articles, joint tenancy assets appear to be the most common targets of Citation proceedings. Many cases dealing with issues such as these are decided each year by the appellate courts, and each case turns on its particular facts. While the basic law is not complicated, its application to particular facts can be quite complex. Apart from the law referred to above, there is a body of substantive law dealing with the decedent’s lack of capacity, undue influence asserted by the respondent upon the grantor, and breach of fiduciary duty by the respondent or someone on his behalf to the decedent. This law will be discussed in upcoming articles.

Whenever cases involve deceased persons, there are also evidentiary issues relating to the Dead-Man’s Act and the Hearsay Rule. These issues were also addressed in the articles noted above. For this discussion, however, it is important to recall that either the Dead-Man’s Act or the Hearsay Rule can normally bar parties adverse to an estate from testifying as to direct dealings or transactions between the adverse party and the decedent. In Citation proceedings, the respondent may instead be called as the court’s witness and examined by the court without regard to the application of either the Dead-Man’s Act or the Hearsay Rule. The authority for that determination is found in Sub-Section (d) of the statute in the language that “the court may examine the respondent.” The reported decisions have said that it is within the sound discretion of the trial court whether or not to do so and whether or not to so treat the witness. An appellate court will not usually disturb the decision made by the trial court. This exception to the usual rules seems to be grounded in the assumption that the court or jury can determine the degree of trustworthiness of the testimony and can decide appropriately. I believe that the rule is also based in part on the premise that it is unfair to allow an estate to pursue someone without allowing that respondent the right to testify to matters that may avoid liability. In Cook County, the judges usually allow the respondent’s testimony.

Many cases state that Probate Citation proceedings are supposed to be streamlined in order to allow estates to be expeditiously settled and closed. In my experience, that is not always true. The major advantage to hearing the cases in the Probate court is that court’s experience in dealing with the law and procedures when estates are involved. Not all attorneys “know” Probate. The same is true of judges.

Finally, for a summary of the twists and turns of one Citation proceeding, read Paul the Painter (two parts) in the Estate Department.

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