Will County Bar Association Probate Committee. April 18, 2012 Seminar. Current Update

Transcription

1 Will County Bar Association Probate Committee April 18, 2012 Seminar Current Update I. Powers of attorney A. Amendments to Power of Attorney Act went into effect in July, B. How do the post-2011 amendments vary from the pre-2011 statute C. Must the principal execute the Notice to the Individual Signing the Form D. Agent s acceptance of authority and successor agent s verification of authority E. How may a principal revoke an existing power of attorney? F. Non-statutory forms and a bank s insistence that a principal use its own form G. Application of a power of attorney to activities outside Illinois H. Does a power of attorney survive death? 1. P. A allows an agent under a POA to have access after the death of the principal to review medical records of the principal. Useful if contemplating a wrongful death or medical malpractice case Presenter: Edward J. Jarot, Jr. II. Transfer on Death Instrument Act A. A transfer on death instrument is allowed in P. A effective January 1, B. Is it a deed? Is it a gift? What are they & when can they be used C. Are there limitations on the kind of property they can be used for D. Revocable or irrevocable? 1

2 E. Can or should such instruments be used as a will substitute? F. Can the grantee of a transfer on death deed secure good title from a title insurance company if there are claims against the decedent s estate, no probate of the grantor s estate, issues about heirship or the grantor s competency?. G. Is it a minefield for malpractice? Presenter: Pennie M. Helenhouse III. Estate Planning Update A. What are the current federal and state exemption amounts? B. What will be the exemption equivalent for federal estate taxation after January 1, 2013? C. What will the exemption equivalent be for state estate taxation after January 1, 2013? D. Why do commentators suggest it might be a good idea to make a substantial lifetime gift before January 1, 2013? E. What is an Illinois QTIP and why is it significant? F. What should we tell clients in times of uncertainty about estate planning? Presenter: Robert S. Krockey IV. Developments in Government Benefits for the Elderly A. Amendments to Medicaid regulations B. Five year look back and hardship determination C. Frerichs v. State of Illinois, 2011 Il App (4 th ) : judicial review of eligibility Presenter: Ford C. June/Jennifer Lynch 2

3 V. Case Law Update, Part I A. The dry estate: Rush University v. Sessions, 2011 Il App (1st) Can a claimant reach assets of the revocable estate after death of the creator of the revocable trust? 2. Leave to appeal has been granted by the Supreme Court. B. Sanders v. Stasi, 2011 Il App (4th) Eligibility to receive income from a trust requires the income recipient to receive notices from the trustee of a trust and examine accountings C. Disputes over guardianship between parent and grandparents or other relatives: In re A. G. G., 406 Ill. App 3d 389 interprets Sec of the Probate Act to require a two step hearing to be held before reaching the best interest of the minor if there is a parent who is willing and able. D. Jarke v. Mondry, 2011 Il App (4th) requires a proponent to present persuasive and credible evidence for disinheritance before allowing a DNA sample. Family gossip and innuendo isn t compelling Presenter: Sean D. Brady VI Case Law Update, Part II A. Gurga v. Roth, 2011 Il App (2d) interprets Sec of the Probate Act of 1975 as to notice to heirs, eviction of non-legatees, and transfer of residuary interests. 1. Do we order title reports for every estate? 2. Do we record a lis pedens notice whenever the estate holds an interest in real estate? 3

4 3. What is the "Notice of Probate" to be recorded at the termination of the estate? See Sec of Probate Act 4. Do we convey the real estate by fiduciary deed? What if the interest in the real estate is conveyed to a trustee of a testamentary trust? B. A family law case applicable to probate: Vlastelica v. Brend, 2011 Il App GAL's and "friends of the court" might qualify as a "child representative" and be immune from malpractice claims. C. Guns in probate - executors/administrators without FOID cards. See the statute at 430 ILCS 65/12 Presenter: Bruce L. Zumstein VII. Case Law Update, Part III A. Lest we ever forget, we are reminded by the Central Illinois case that percentage fee agreements won't stand any scrutiny by the courts. Estate of Weeks, 409 Ill App 3d 1101 (4 th Dist.) B. Fifth Third Bank v. Rosen, 2011 Il. App (1st) Warns that attorney fees other than for the benefit of the estate or trust are not a charge against the estate. Beware, if you are a trustee exercising your discretion questioned by the beneficiaries. 2. Defines a "scrivener's error." What is a clerical mistake as opposed to a mistake in the law? 3. Trusts are to be interpreted by the same rules as govern the interpretation of a will. C. Boyar v. Dixon, 2012 Ill App (1st) warns that if your client 4

5 (knowingly?) takes the households goods and personal effects, your client may have given up the right to contest the will: D. Carter v. Carter, 2012 IL App (1 st ) Is an executor or trustee to be surcharged if the fiduciary invests in bonds rather than stocks, and the principal value of the investment doesn t hold against inflation? 1. Take care in drafting that will! (Good advice for us all at the end of the seminar) Presenter: TBA VIII Miscellaneous thoughts A. Electronic case citation is here. B. Jury instructions are available on line C. Future use of River Valley as the venue for Probate Court 5