A power of attorney is a document whereby you can appoint someone as your agent, to act on your behalf with respect to the matters specified in the power of attorney. For instance, sometimes a person who is closing a real estate transaction is unable to appear at the closing and sign the requisite documents. Perhaps they live in another state, or are ill, or must stay home to attend to a sick child or an elderly parent. In such circumstances, that absent party can grant a power of attorney to another individual, authorizing them to appear at the closing of the transaction and act on their behalf, even so far as signing documents on their behalf. The act of an authorized agent under a power of attorney is just as valid and binding on the giver of the power, as if the giver personally appeared and concluded the transaction in person. Read More
If fee schedules are out, how are attorney’s fees in Illinois probate estates to be determined? The Illinois Code of Professional Responsibility cites several factors that are to be considered in determining the reasonableness of any attorney’s fee. These include, (a) the time and labor required (b) the novelty and difficulty of the questions involved (c) the likelihood that acceptance of the assignment by the attorney precluded other employment (d) the amount involved and the results obtained (e) the experience and reputation of the attorney. Illinois courts have held in the probate context that the most important of these elements is the number of hours worked on the assignment by the attorney. Therefore, the most important evidence in a probate petition for attorney fees are the attorney’s time records indicating how much time was put in and the tasks accomplished. The time records should be detailed with regard to the date and time expended and the nature of the task accomplished. The time records will have more evidentiary value if they were kept contemporaneously with the work done (as opposed to reviewing the file at the end of the assignment and trying to compute the time expended). Read More
That question needs to be addressed with regard to every assignment a lawyer accepts. The client deserves to know, or at least have a range of potential fee outcomes if the scope of the assignment is uncertain, and the lawyer has an ethical duty to inform the client about fees early on in the engagement. Rule 1.5 (b) of the Illinois Code of Professional Responsibility, the code of conduct imposed by the Illinois Supreme Court on all attorneys in Illinois, states:
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
In the probate context, the Illinois Probate Act provides at Section 27-2(a):
…..the attorney for a representative is entitled to reasonable compensation for his services.
Sounds simple. Logical. Fair. But the hard part is defining what is “reasonable”.
When I first started practicing in 1976, the probate fee question was much simpler. The probate judges in Cook County used a fee schedule, based upon the size of the estate, to determine fees. I still have my copy, though it is now dog-eared and yellowed. In those days, the attorney’s fees in every estate were scrutinized and either approved or denied by the judge hearing the case. I still can see a judge reviewing a Final Account showing my attorney’s fees, then opening a drawer in his desk to look at the fee schedule and doing some math on a pad on his desk and then looking at me and stating “Your Final Account is approved, Mr. Reda. All fees of the attorney and the representative are approved.” It was all simple math. Read More
Reading appellate court opinions is a hobby of mine. Not only can you stay abreast of developments in the law, but you often get insights into human nature—occasionally uplifting, but usually, perplexing.
I just read a case, handed down by the Illinois Appellate Court this month, that fell into the latter category—perplexing. Jennifer Koerner and her boyfriend, Kent Nielsen, like many young couples today, decided to take their romance to the next level by moving in together. In November, 2010, Koerner purchased a dog, Stig, from an animal shelter for $95.00. On Christmas Day, 2010, Koerner wrote a poem to Nielsen and informed him in the poem that she was making Stig a Christmas gift to Nielsen. Unfortunately for these young lovers, the embers of love cooled and in February, 2012, Nielsen and Stig moved out. During February and March 2012, emails were exchanged between Nielsen and Koerner concerning the logistics of the move out. Koerner wrote to Nielsen on more than one occasion that she and her dog, Jessie, missed Stig (I guess she no longer missed Nielsen) and urged Nielsen to “bring Stig home”. Nielsen repeatedly replied that Stig belonged to him.
In April, 2012, Koerner filed a lawsuit against Nielsen alleging that he was withholding from her personal property (Stig) that rightfully belonged to her. At trial, the court heard testimony from both sides as to the circumstances surrounding Stig’s purchase and the Christmas poem. At the conclusion of the trial, the court ruled that the burden of proving that Nielsen was wrongfully withholding personal property belonging to Koerner was with Koerner and she had not met her burden of proof. The court ruled that Nielsen was the true owner of Stig. Koerner appealed the trial court’s ruling, claiming the court had ignored evidence that Stig’s license registration was still in Koerner’s name, as was the veterinary insurance policy for Stig. Read More
I have to honor my Italian heritage and wish happy St. Joseph’s Day to everyone. I have always taken great pride in being Italian. I love the food, the country, the attitude of the people, their creativity throughout history, and on and on. But one thing I don’t admire about Italians is there ability to be petty and hold grudges. The word “vendetta” is an Italian word meaning revenge. The fact that this Italian word has now been assimilated into the English language is no coincidence.
Now don’t get me wrong, every nationality has a segment of the population who are conflict-loving, irrational folks. But in my 37 years as an attorney, some of the most hard fought family fights occurred in Italian families. Thirty years ago I witnessed cousins almost come to blows over a used sausage-making machine that each felt had been promised to them by their zia (aunt). I have seen two brothers each spend over $10,000 in legal fees fighting over household furniture and furnishings that could not have been worth more than $5,000 in total. Read More
Happy St. Patrick’s Day. This day always makes me think about corned beef, green beer and large Irish families. It seems many of the Irish families I grew up with had five or more kids. The parents in those families were amazing people. Those families were so big that after a couple of generations, you likely couldn’t keep track of the cousins and who was the child of who.
Which brings me to today’s topic—the importance of obituaries. As an attorney who has represented genealogists in unknown heirship cases over the years, I can’t tell you how important a well written and complete obituary is. The typical case involves a decedent’s estate where the person’s family is completely or partially unknown. Think reclusive neighbor who you seldom saw and who didn’t speak to anyone. Think the great-grandchild of one of those Irish parents. They die and don’t have a will. What happens next? Frequently, the Public Administrator of Cook County gets involved in administering the estate. The Public Administrator is the public official charged with handling the decedent’s estate for people who have no one else to handle it. They are there to wrap up the affairs of the homeless, the recluse, the person estranged from their family—you get the idea. Read More
What is probate? From an etymological view, the word derives from the Latin word “probare”–to prove or examine. From a grammatical point of view, it is a noun, a verb and an adjective. It is a place—the Probate Division of the Circuit Court of Cook County is located on the 18th floor of the Richard J. Daley Center in downtown Chicago. It is a process–”to probate a will” or “probate an estate” means to commence a probate proceeding in the Probate Division of the Circuit Court and follow the procedures set forth in the Illinois Probate Act, the statute that governs probate proceedings. It is a type of asset–the term “probate assets” is generally taken to mean assets that must pass through the probate process. Probate assets are those assets standing in the decedent’s name alone at the time of his or her death. Assets that were held in joint tenancy by the decedent and another are not probate assets since, by virtue of the joint tenancy, those assets pass immediately upon death to the surviving joint tenant. Likewise with assets held in a trust or held in a “pay on death” format. Those assets vest in the designated recipient immediately upon the death of the decedent. Not so with “probate assets”–they need to go through the probate process.
It is an interesting word “probate”. But it is an even more interesting area of law practice. More about that later.