Cook County Probate Attorneys Reda Ciprian Magnone Chicago

What's best for the client, not what's best for the attorney.


Personal Property in Illinois Probate

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.

The Appellate Court upheld the trial court’s ruling that Nielsen was the true owner of Stig, finding that the poem was evidence of a gift, that was not rebutted by any evidence that Koerner presented.

So how does this case relate to probate?  Stig was an animal, and an untitled asset, just like most personal property that a decedent owns.  Unlike vehicles, boats and airplanes, which have legal titles administered by a central registry (Illinois Secretary of State for vehicles, Illinois Department of Natural Resources for boats and the Federal Aviation Authority for airplanes), there is no such registry for most personal property.  Determining who owns untitled personal property can be problematic in a probate setting.  Who owns that dining room set?  Who owns Aunt Edna’s jewelry? Aunt Edna never was employed outside the home, so we know that Uncle Joe bought it—is it his or did he make a gift of it to Edna during their life?

Think of the problems that arise in a second marriage setting.   Dad dies without a will and children from Wife 1 can’t bear to see Wife 2 have their mother’s household furniture and argue they should have it.  Wife 2 argues that Dad gifted it to her when they married.  Burden of proving that gift is on Wife 2, but if people can sue, and actually file an appeal to the Appellate Court over a $95 dog, how much more would they fight for “mom’s treasures”?

Personal property clauses in wills and trusts are seldom viewed as an important part of the document.  Often, not a lot of thought goes into drafting those clauses.  In situations where there is a high potential for conflict (i.e. a second marriage with children from the first, a childless person who is leaving all personal property to remote relatives or strangers, a person who has acquired really valuable personal property, etc.), greater care should be taken in thinking about, and clearly defining what the decedent owns and who it is to be left to.  Maybe with that clarity, acrimony (and protracted probate litigation) can be avoided.