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?