probate

In 2015, Illinois signed a new portion of the Probate Act. This new portion was designed to be a tool to help avoid elder abuse situations. However, this new portion of the law opens the door for meaningful transfers to possibly be voided too. How does this new law affect your estate planning and end of life documentation planning?

When most people think of elder abuse, they think about the awful videos online showing elderly men and women in nursing care being physically neglected or abused. Most people don’t automatically think of the mental abuse that happens often at the hands of the caretakers for the elderly.

A good example of non-physical abuse is a caretaker taking advantage of Aunt Sally by manipulating her into adding themselves to Aunt Sally’s will, in an attempt to gift or transfer property to the caretakers upon Aunt Sally’s death. This example is exactly why the new law was put in to effect; to prevent those transfers from happening.

The new law states that if a caregiver is transferred or given property that is valued at over $20,000, it is presumed that the transfer is void if contested by a family member. There are some major issues with that. Say for instance Aunt Sally has been with Ray since her husband died 35 years ago, but they never legally got married. Aunt Sally’s son has contested that Ray be able to receive the gifts and transfers she wanted Ray to have according to her estate planning documents and will. Because the house and other assets are valued above $20,000, Ray will have to fight Aunt Sally’s son in court to prove that there was nothing fraudulent about the transfer of property. To add a little salt to that injury, if by some weird chance the court does rule in favor of Aunt Sally’s son, Ray will also be held accountable for both his attorney fees as well as Aunt Sally’s son’s attorney’s fees.

So who is considered a caretaker? The answer may surprise you. Of course, if the person receiving the transfer or gift is a family member defined as a spouse, child, grandchild, sibling, aunt, uncle, niece, nephew, first cousin or parent, they are then considered simply a “family member”. However, a trusted friend, neighbor, boyfriend or girlfriend, or teacher is considered a “caretaker”, there invoking the rule. The doorway is opened by the family member “status” of the person who is receiving the gift.

There are many ways to go about spotting if this rule will be an issue, and how you can prevent this rule from being an issue when preparing your will and estate planning documents. One of those things you can do as a preventative measure, is interviewing Aunt Sally privately to find out if she is feeling bullied into the decision to transfer the property to the caretaker. This interview could be taped or recorded to memorialize the interview. At minimum, an attorney should document notes of the interview that summarize the facts and circumstances as to why Aunt Sally wants to leave her house or other valuable property to her caretaker instead of her son. There is a document that can be drafted by an attorney called a “Certificate of Independent Review” which will state at the time of creating the documents with Aunt Sally, the attorney took specific consideration and acknowledgment that leaving her house to Ray could be seen as fraudulent, but it in fact was not. She 100% stood behind her decision at the time the documents were created. Another third option, would be for the attorney to have Aunt Sally sign an affidavit that states her circumstances and intentions from her point of view.

As you can see, this new “presumptively void transfers” law isn’t just the heavy hitting tool that lawmakers thought it would be. This new law can potentially deem legitimate gifts and transfers void as well. Attorneys and others who prepare estate planning documents need to be aware and plan the careful documentation to protect the wishes of your loved one, as well as the integrity of the will.

If you would like to contest a will, there are time limits for doing so. If you need help in finding the right lawyer for your case, call us any time at (312) 346-5320 or click here to email us.

Generally speaking, attorney’s fees are the responsibility of the executor of the estate. The executor is the person assigned to carry out the terms of the will. The executor usually is authorized to pay the attorneys fees out of the estate before distributing the assets to the beneficiaries.

As for the fee arrangements with the attorneys, there are a few different arrangements in probate matters. Attorneys cannot always predict the complications that might arise throughout the course of the lawsuit. Most probate matters are straight forward without thousands of dollars for attorney’s fees. Quite often the Illinois probate attorneys we suggest will only require clients to pay upfront the court costs and will wait until the probate estate is officially closed before they take a fee.

A second fee arrangement is a contingency fee arrangement. In a contingency fee arrangement, the client pays nothing unless he or she ‘wins,’ meaning they recover some money or property from the lawsuit. Under a contingency fee arrangement, the attorney advances all the fees and costs incurred by the case, and the client and attorney agree on a percentage of any final award that the attorney will keep if they recover. If the client does recover, the attorney first gets paid his percentage share of the final award (ranging from 20 to 40 percent), and then reimburses the costs and fees which he advanced in pursuit of the client’s claim. If there is no recovery then the attorney receives nothing. It’s a risk/reward proposition.

Although they are a possibility, contingency fee arrangements in probate cases are not very common. They are most common in cases involving a contested estate. We do know some well-qualified attorneys that will consider such cases on a contingency basis, so if this is of interest to you, please call or email us for a referral. Contingent fees are only appropriate in a contested estate case where one party is disputing a will.

Finally, some attorneys will also set a flat fee for the client in probate case. A flat fee is arranged in advance as a “final amount due” based on the attorney’s estimate of how much time and work will be required. As previously mentioned, predicting the life of a probate matter is often very difficult, hence flat fee arrangements are generally reserved for simple probate cases where no contest or complicated assets are involved.

Every probate attorney we recommend will talk to you for free and help you decide what fee arrangement is right for you. If you have any questions or need a recommendation, please do not hesitate to contact us.