When a person is an executor of an Estate, should he have a lawyer? What would the job of the lawyer be?
The lawyer would advise his client, the executor, on probate law. He would tell him what is required. He would tell an executor what he could do. More importantly, the lawyer ought to tell his client what he should not do and cannot do.
Actually, I suspect that a lawyer will not tell a client not to do something that would be a violation of the law. Perhaps his correct duty would be to inform the client what the legal consequences of a violation of a law (often called a "crime") would be.
In the case of the Estates of Jack and Audrey Feldkamp, an elderly couple in the Marengo area who died early in June of this year, the executor appointed under the Wills promptly filed the appropriate legal papers in Mrs. Feldkamp's estate and, later, filed similar papers in Mr. Feldkamp's estate.
The original lawyers, Schmitt & Filler of Marengo, bailed out on the case and filed Petitions to get paid the $8,700 they were already owed. On Tuesday, August 30, Judge Sullivan allowed them to withdraw. The reason given by the lawyers was "lack of communication and cooperation on the part of Scott A. Feldkamp." Scott Feldkamp, son of Jack and Audrey Feldkamp, is the Executor of both estates.
The Order by Judge Sullivan allowed Schmitt & Filler to withdraw was entered, and the name of that law firm has been removed from the online court record of the McHenry County Circuit Court.
But a strange condition now exists. There is no attorney-of-record in the Court records for either estate.
Mark Gummerson, a Woodstock attorney, was in court on Tuesday., and he was also standing before Judge Sullivan when the motion by Schmitt & Filler to withdraw was heard. Judge Sullivan looked through the court jacket and said he did not find an Appearance (by Gummerson) in the jacket. I understood Gummerson to say that he had filed it. Perhaps he meant that he had stopped at the clerk's court before the 9:00AM court time and had filed it that morning.
When the Appearance hadn't shown up in online court records on Wednesday, I contacted the Clerk. And now, as of today, as of this time (see time-stamp), there is no Appearance on record to indicate the attorney for the executor of these two estates.
Why is an attorney important? Often, an independent executor will not know exactly what to do. He might attempt to follow the maxim that "it's easier to get forgiveness than to get permission." If there are some errors made, the executor may find out that Judge Sullivan is not very forgiving.
For example, when an estate has considerable debt, a judge will be very concerned that the creditors' rights are protected. Any cash assets of the Feldkamps now belong to the Estates. They do not belong to the heirs, of which there are two. The executor is a fiduciary. He cannot act in his own right or distribute any assets to an heir without court permission or until the estates are settled.
A lawyer who knows that his client is doing so might find that he's standing on a wobbly three-legged stool with a rope around his neck. A lawyer will absolutely protect his law license and his livelihood by instructing his client in the law.
Will a lawyer appear soon to protect the creditors of these two estates?
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11 comments:
Gus, maybe one of your attorney readers can explain if there is a legal requirement to file any 'Probate' with the court unless one's estate has a value of a certain ceiling?
Meaning if the estate is worth less than two million, does the court even have to be involved.
Also, are estates free of Federal death taxes if under 6 million dollars?
Is it a legal requirement to place a small advertisent in the local newspaper to notify creditors that they have 6 months to file any claims against the estate.
The estate laws have changed so much over the years, it might be hard for most of us to understand.
As you can see by the bills already subitted, the estate can be consumed by attorney's fees.
(Not knocking any attorney's, its just expensive to sort out stuff if the will is not very specific)
Thank you to anybody who can help us all out as this is one task that will not escape any of us.
Thanks, Bounty Hunter.
The question about "whether" probate needs to be opened is moot, since it has been opened for both estates.
One of the most important reasons for probate is to start the clock ticking on claims against the estate.
I don't know what the publication requirements are or the time period for filing claims.
I suspect that all cash accounts (bank accounts) must remain in the Estates. Heirs will not be able to claim until creditors are satisfied.
I also suspect that the executor should not make any money distributions to heirs, himself included.
The answer to all of these questions is stated clearly in the statutes.
I agree with Whitmore and add that you may be on a slippery slope speaking of these lawyers in your blog. IF and I said IF, you are in any way inferring that either Gummerson or Schmitt & Filler have done something improper; you may in fact be before the judge on that three legged stool.
Whitemore, thanks.... I asked the questions for the general public. Please keep in mind, most people aren't legally nor internet savy so finding or even knowing what a 'statute' is might be difficult.
The laws are ever changing, such as the recent changes in estate tax laws from Bush to Obama.
Might hope was that maybe this would be a nice opportunity for a professional to lend some information in this complicated area of law.
I am personally about to face this 'probate' arena. Any help would have been nice.
Thank you.
You are comingling two different issues. Bush and Obama‘s influence via the Congress is over the FEDERAL INHERITANCE ACT and the size to which any exemptions were made. PROBATE and transfers of property upon death is covered under 755 ILCS 5/). Also known as the Probate Act of 1975. You can read the act and get the basics.
It is much easier to have an attorney specializing in wills, probate, and estates to file for you. BTW,the firm you mentioned, Schmitt & Filler are extremely knowledgeable and reputable in this concentration of law.
Back in the "olden" days I had always heard the Federal death tax referred to the Federal Estate Tax and State death taxes referred to as inheritance tax.
The Estate tax was (is?) a tax on the value of the estate and is paid based on the net taxable value of the estate. I believe there is currently a $5,000,000 exemption. Based on initial public estimates of the executor about the assets in the estates, there will be no Federal Estate Tax.
The Illinois Inheritance Tax is a different story. This is a tax on the value received by an heir.
The public reason given by the law firm of Schmitt and Filler for their motion to withdraw was clearly stated. Based on their Motion to Withdraw, which included that reason, Judge Sullivan allowed them to withdraw.
Schmitt and Filler gave a forceful recommendation (in capital letters) to the executor to get another attorney.
Bounty Hunter, it sounds like you were looking for free legal advice. Best hire a probate attorney if you need direction...
Always engage the appropriate attorney. Otherwise, it's like attempting a DIY brain surgery.
Always engage an attorney BEFORE you pass on. Whether for a Will, to set up Trusts, and/or general direction and advice.
My general recollection was Estates valued below $50,000 did not usually have to run through Probate.
Revocable Living Trusts can be relatively simple and inexpensive to set up (really!), particularly when compared to the expenses of Probate.
The whole point is to ensure that those you've left behind get what it is you've left for them with the least amount of time and expense, and with maximum privacy. Trusts are virtually private, unarguable and unbreakable.
If you want an entertaining primer on the horrors of Probate, read Charles Dickens' "Bleak House".
Generally, Trusts do not run through Probate, and matters of who gets what and how much do not become public knowledge.
And Gus, Probate is not necessarily there for creditors' protection, it is for the protection of ALL parties - creditors, beneficiaries and executors.
And so too, my advice for any Executor or Trustee who finds themselves in a situation where Probate is NOT required - you’ll do best with an Attorney anyway, if only to protect yourself as your interests may not necessarily be as a beneficiary. Not to mention the reams of paper to be processed and special tax returns to be handled correctly.
You can pay now, or you can pay later. Paying now and preparing now is always simpler and more economical than doing so later.
Good advice, DBTR.
Trusts are often a good idea and more economical. It does not appear that Mr. and Mrs. Feldkamp availed themselves of trusts.
An independent executor (as opposed to a family member) is often a good idea, especially when the executor is an equal heir. This often guarantees a conflict with the other heir, if the executor attempts to compensate himself for his duties as executor.
True -
I am my parents' Executor/Trustee, yet am also one of 2 beneficiaries.
Be that as it may, I personally am committed to a 50/50 split no matter what.
While I am also allowed "compensation" for my role, I intend to take nothing.
Frankly, most will be handled by the Law Firm anyway, and secondly, outside of their efforts, I expect me and my sibling to participate equally in getting our ducks in a row.
But that's us.
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