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WILLS, TRUSTS, AND

ESTATE ADMINISTRATION

FOR THE PARALEGAL

Sixth EditionDennis Hower & Peter Kahn

Illinois Supplement

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TABLE OF CONTENTS

Chapter 1 The Estate Plan and the Purpose and Need for A Will 3

Chapter 2 The Concept of Property Related to Wills, Trusts, and Estate Administration 4

Chapter 3 The Participants and the Proper Court 6

Chapter 4 The Law of Succession: Death Testate or Intestate 8

Chapter 5 Wills: Validity Requirements, Modification, Revocation, and Contests 13

Chapter 6 Preparation to Draft a Will: Checklists and the Conference with the Client 15

Chapter 7 Final Draft and Execution of a Valid Will 16

Chapter 8 Introduction to Trusts 22

Chapter 9 Classification of Trusts, the Living Trust, and Other Special Trusts 25

Chapter 10 Estate Planning 27

Chapter 11 Long-Term Care 28

Chapter 12 Personal Representatives: Types, Preprobate Duties, and Appointment 29

Chapter 13 Probate and Estate Administration 31

Chapter 14 Informal Probate Administration 40

Chapter 15 Tax Considerations in the Administration of Estates 43

Chapter 16 Ethical Principles Relevant to Practicing Legal Assistants 45

CHAPTER 1

THE ESTATE PLAN AND THE PURPOSE

AND NEED FOR A WILL

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STATUTORY REQUIREMENTS FOR A WILL

The Illinois Probate Act of 1975, as amended fromtime to time, is the primary authority that containsthe requirements for, and validity of, a will. This actis found in Chapter 755 of the Illinois CompiledStatutes (referenced as Ill Comp. Stat. or ILCS).Similar acts related to estates can also found inChapter 755 of the Illinois Compiled Statutes. Someof these acts include the Uniform International WillsAct, the Escheats Act, the Illinois Living Will Act,and the Illinois Power of Attorney Act and TheDisposition of Remains Act.

BASIC TERMINOLOGY RELATED TO WILLS

The terminology found in the text is generally con-sistent with probating an estate in Illinois. Basicdefinitions of certain terms can be found in 755 Ill.Comp. Stat. 5/1-1 through 755 Ill. Comp. Stat. 5/1-11.

According to 5/1-2.04, the use of the termbequeath includes this testamentary gift of both realand personal property by a will. Under 5/1-2.1, theterm legacy is also used for real or personal prop-erty as well. Also, the definition of a will under theact means both a testament and a codicil. 755 Ill.Comp. Stat. 5/1-2.18.

Other chapters of this supplement will furtherhighlight any differences in terminology.

CHAPTER 2

THE CONCEPT OF PROPERTY RELATED

TO WILLS, TRUSTS, AND ESTATE

ADMINISTRATION

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PROPERTY:TERMINOLOGY ANDCLASSIFICATION

Real Property

The definition of real property is found in a coupleof places in the Illinois Code. It includes lands,lands underwater, structures, and improvements tothe land, easements, franchises, and other legalrights to land. 315 Ill. Comp. Stat. 25/3(f) and 765Ill. Comp. Stat. 90/3(e).

Fixtures

Illinois defines fixture in relation to a couple of dif-ferent acts. Essentially, the definition is a standardone dealing with an intention to attach personalproperty to land so that it becomes a part of theland and an interest arises in it under real propertylaw. 30 Ill. Comp. Stat. 105/24.8 and 810 Ill. Comp.Stat. 5/9-102(a)(41).

STATUTES THAT GOVERN THEPASSAGE OF PROPERTY

In connection with the passage of property in Illinois,real and personal property are distributed to an heirthrough the same rules of law under the rules ofdescent and distribution if the decedent dies intestate.755 Ill. Comp. Stat. 5/2-1. A testator has the power tobequeath by will the real and personal estate he orshe owns at death. 755 Ill. Comp. Stat. 5/4-1.

FORMS OF PROPERTY OWNERSHIP

Forms of Concurrent Ownership—Ownership by Two or More Persons

Joint Tenancy

Illinois has enacted the “Joint Tenancy Act,” whichsets forth statutory law on joint tenancies. This actis found in 765 Ill. Comp. Stat. 1005/0.01 through765 Ill. Comp. Stat. 1005/4a.

Creation of a Joint Tenancy

According to 765 Ill. Comp. Stat. 1005/1(b),where an instrument does not create a tenancyby the entirety but declares that the estate cre-ated be not in tenancy in common but with rightof survivorship or declares that the estate createdbe not in tenancy in common but in joint ten-ancy, a joint tenancy has been created. Illinoislaw prefers the creation of a tenancy in commonrather than a joint tenancy. 765 Ill. Comp. Stat.1005/1.

Tenancy in Common

Illinois prefers the creation of a tenancy in commonrather than a joint tenancy. 765 Ill. Comp. Stat.1005/1. Multiple party ownership of land is pre-sumed to be as tenants in common unless statedotherwise in the instrument.

Tenancy by the Entirety

Illinois does recognize tenancy by the entireties. In765 Ill. Comp. Stat. 1005/1c the statute sets forthhow to create a tenancy by the entirety.

Community Property

Illinois is a common law state, not a communityproperty state.

ESTATES IN REAL PROPERTY

Freehold Estates

Fee Simple Estate or Fee Simple Absolute

Illinois provides land to be conveyed under “TheConveyances Act” found in 765 Ill. Comp. Stat.5/0.01 through 765 Ill. Comp. Stat. 5/39. The gen-eral rule in Illinois is that a fee simple estate is presumed to be passed under a warranty deed. 765 Ill. Comp. Stat. 5/9.

Life Estate

755 Ill. Comp. Stat. 5/20-6(e) discusses the powerthe court has in connection with administering realestate, and how the court can use the real estate to

satisfy creditors’ claims. This section, in particular,explains what a person with a life estate wouldreceive if the real estate had to be sold to satisfycreditors’ claims.

Dower and Curtesy

As the text indicates, dower and curtesy haveundergone changes in Illinois. 755 Ill. Comp. Stat.5/2-9 abolishes dower and curtesy all together.

Spouse’s Right to Election or Elective Forced Share

In Illinois a spouse may choose to reenunciate thedecedent’s will even if the testator mentioned andprovided for the surviving spouse in his will. If thatchoice is made, the surviving spouse may inherit ashare proscribed by Illinois statute. Under 755 Ill.Comp. Stat. 5/2-8(a), a surviving spouse is entitledafter payment of all just claims to one-third of theestate if the testator leaves a descendant or one-halfof the estate if the testator leaves no descendant. Thesurviving spouse must file a petition to renounce thewill within 7 months after the admission of the willto probate. 755 Ill. Comp. Stat. 5/2-8(b).

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CHAPTER 3

THE PARTICIPANTS

AND THE PROPER COURT

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THE PARTICIPANTS

The Personal Representative

Appropriate Terminology

As the textbook indicates, if a decedent has a validwill and names the representative in the will,Illinois calls him or her an executor. If the decedentdies intestate, Illinois will call the representative anadministrator. Further, “representative” is defined inIllinois as an executor, administrator, administratorto collect, standby guardian, guardian, and tempo-rary guardian. 755 Ill. Comp. Stat. 5/1-2.15. Withinthis supplement, the terms personal representativeand representative are used interchangeably andhave the same meaning.

The Role of the Personal Representative

An executor is to administer all of the decedent’sestate including both the testate and intestate estate.755 Ill. Comp. Stat. 5/6-15.

Some of the probate duties of the personal repre-sentative are outlined here. A more thorough discus-sion of the probating of an estate is covered inChapters 12, 13, and 14. Any person who is 18 years,of sound mind, and not convicted of a felony is qual-ified to be an executor. 755 Ill. Comp. Stat. 5/6-13.

In Illinois, one duty that a potential executorhas is to institute a proceeding to have the willadmitted to court within thirty (30) days of acquir-ing knowledge that he or she is named in the willas executor. 755 Ill. Comp. Stat. 5/6-3.

Some of the remaining pre-probate powers ofthe executor are contained in 755 Ill. Comp. Stat.

5/6-14. These include (1) carrying out of any gift ofthe decedent’s body, (2) the burial of the decedent,and (3) the payment of funeral expenses, and (4)the preservation of the estate.

An administrator with a will annexed has thesame powers and duties as an executor. 755 Ill.Comp. Stat. 5/6-16.

The main textbook contains other types ofpreprobate duties required of the personal repre-sentative. These are consistent with the generalpractice of probating an estate and would generallyapply in Illinois as well.

As indicated in the text, a personal representa-tive should file a variety of documents and is nor-mally the individual that petitions the court to admitthe will and/or issue letters, will receive letters testa-mentary or letters of administration, and proceedwith administering the estate. This procedure will bediscussed in length in Chapter 12 of this supplement.

The Attorney

The personal representative may hire an attorney tohelp administer the estate. According to 755 Ill.Comp. Stat. 5/27-2, the attorney is entitled to rea-sonable compensation for his or her services.

In Illinois, the conduct of an attorney is gov-erned by the rules of the Supreme Court of Illinois

Article VII.

The Paralegal or Legal Assistant

The textbook outlines the role a paralegal or legalassistant would have in connection with estateplanning or administration. In Illinois, a paralegal is

bound by the ethical rules of the professionalorganization of which he or she is a member.

The Probate Court

In Illinois, as indicated in the text, the ProbateDivision of the Circuit Court has jurisdiction overwills, probate, and distribution of the decedent’sestates.

The Clerk or Court Administrator

In Illinois, each county does have different proce-dures to follow. It is best to contact the courthousein the county in which you are practicing to deter-mine the appropriate procedure. For example, in Winnebago County the clerk of circuit courtreceives the probate documents; however, thejudge administers the oaths.

TERMINOLOGY RELATED TO PROBATECOURT PROCEEDINGS

Venue

The court that has proper venue in connection withthe probating of a will or of an estate where aperson died intestate is as follows:

• In the county where he or she resided

• If he or she has no known Illinois residence, inthe county in which the greater part of his orher real estate is located at the time of death

• If he or she has no known Illinois residenceand no real estate located in Illinois, in thecounty where the greater part of his or her personal estate is located at the time of death755 Ill. Comp. Stat. 5/5-1

Ancillary Administration or AncillaryProbate Administration

If the decedent is not a resident of the state ofIllinois or is considered a nonresident missingperson, and has died either testate or intestate, thesitus of the tangible personal estate is where theproperty is located and the situs of the intangiblepersonal estate is where the instrument evidencinga share, interest, debt, obligation, stock, or chose inaction is located. 755 Ill. Comp. Stat. 5/5-2. Once itis determined that the situs of the property islocated in Illinois, the court may direct the repre-sentative appointed in Illinois to make distributionof the tangible or intangible property directly tothose beneficiaries designated in the decedent’s willor to the persons entitled to receive the personalestate under the laws of the decedent’s domicile.755 Ill. Comp. Stat. 5/7-6.

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CHAPTER 4

THE LAW OF SUCCESSION: DEATH

TESTATE OR INTESTATE

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DEATH WITH A WILL—TESTACY

Terminology Related to Wills

Holographic Will

As the textbook indicates, Illinois does not recognize holographic wills. See the discussion in Chapter 5 regarding requirements of a validIllinois will.

Nuncupative (Oral) Will

As the textbook indicates, Illinois does not recog-nize nuncupative wills. See the discussion inChapter 5 regarding requirements of a validIllinois will.

Statutory Will

As the textbook indicates, Illinois does not have astatutory will.

Types of Dispositions—Gifts Made in a Will

Bequest, Legacy, or Devise

In Illinois, bequeath means to dispose of real orpersonal property by will, and also includes devise.755 Ill. Comp. Stat. 5/1-2.04. Legacy means a testa-mentary gift of real or personal property andincludes a devise and bequest. 755 Ill. Comp. Stat.5/1-2.12.

Ademption, Lapses, and Abatement

Lapses

In Illinois a beneficiary has the right to disclaim thereceipt of a gift under a will or under the statutesof descent and distribution by filing a written dis-claimer. Once a person has disclaimed the property,it will be distributed as though the person had pre-deceased the decedent. 755 Ill. Comp. Stat. 5/2-7.

Illinois has an Antilapse Statute found in 755 Ill.Comp. Stat. 5/4-11. It provides that unless the testatorprovides otherwise in his or her will, the propertywill pass as provided in this statute. First, if the giftwas originally given to a descendant of the decedent,the legatee’s descendants take the estate per stirpes.Second, if the gift went to a member of a class, and amember of the class dies, his or her share goes to theother members of the class, unless the class memberis a descendant of the testator, in which case the giftgoes to the legatee’s descendants per stirpes. Third, ifneither of the above situations apply then the gift willpass as a part of the residue under the will.

Abatement

If an estate is insufficient to pay all legacies, specific legacies will be satisfied pro rata beforegeneral legacies. General legacies will be satisfiedpro rata next. No priority is given between real andpersonal property. 755 Ill. Comp. Stat. 5/24-3(b). If the property specifically bequeathed is sold by thepersonal representative, the other legatees will con-tribute to the legatee whose gift has been sold toequalize the abatement. 755 Ill. Comp. Stat. 5/24-3(c).

DEATH WITHOUT A WILL—INTESTACY

Intestate Succession Laws

The main statute in Illinois which provides the rulesof intestate succession is 755 Ill. Comp. Stat. 5/2-1,“Rules of Descent and Distribution.”

Illinois provides that real and personal propertyof the decedent be distributed in the same order.As with most states, the first in line to inherit is thesurviving spouse. He or she inherits the entire estateif the decedent died without any descendants. Ifthere are descendants, then one-half the estatepasses to the decedent’s descendants per stirpes andone-half passes to the surviving spouse. If there areonly descendants of the decedent and no survivingspouse, then the entire estate passes to the descen-dant’s per stirpes.

Illinois then does something a little different thanother states. It puts the decedent’s parents and sib-lings on the same line for inheriting. If there are nodescendants and no surviving spouse, then in Illinoisthe estate passes to the decedent’s parents and sib-lings in equal parts. If one parent has predeceasedthe decedent, then that parent’s share goes to the sur-viving parent. Thus, if we have mom, sister, andbrother, but dad has predeceased the decedent, thendad’s share goes to mom. Mom gets half of the estatewhile sister gets one-quarter of the estate and brothergets one-quarter of the estate. If the brother or sisterhas predeceased the decedent then his or her sharepasses to his or her descendants per stirpes.

The next in line to inherit would be the dece-dent’s grandparents. One-half of the estate goes tothe maternal grandparents, or if only one survives,all of that share of the estate to that survivor, andone-half is distributed to the paternal grandparents,or if only one survives, then all of that share to thatsurvivor. If any set of grandparents has predeceasedthe decedent then their share goes per stirpes totheir descendants.

The statute goes on to a division between thepaternal and maternal great-grandparents and theirdescendants.

Finally, if the decedent has no living relatives,then the estate escheats. Real property escheats tothe county in which it is located. Personal propertyescheats to the county in which the decedent was aresident.

The final part of this statute indicates that nodistinction is made between the kindred of the

whole and the half blood. Thus, a sister of halfblood has the same rights as a sister who had thesame parents as the decedent.

Per Stirpes Distribution

Illinois distributes an intestate estate through theuse of per stirpes. For example, the estate initiallygoes to the surviving spouse and descendant of thedecedent per stirpes. See the full discussion on theIllinois statute of descent and distribution. 755 Ill.Comp. Stat. 5/2-1.

Also, if a beneficiary to a will predeceases thedecedent and the beneficiary was a descendant ofthe testator, according to statute, his or her sharepasses per stirpes to his or her descendants. See thediscussion on Illinois’ antilapse statute. 755 Ill.Comp. Stat. 5/4-11.

Escheat

Illinois has enacted the “Escheats Act” found in 755Ill. Comp. Stat. 20/0.01 through 755 Ill. Comp. Stat.20/7. 755 Ill. Comp. Stat. 20/1 repeats the Illinoisdescent and distribution statute (755 Ill. Comp. Stat.5/2-1) and states that both real and personal prop-erty will be inherited by the state if the person dieswith no known heirs or representatives. In particu-lar, the real estate escheats to the county in whichit is located. The personal property goes to thecounty in which the decedent was a resident. If thedecedent was not a resident of Illinois, the personalproperty goes to the state. 755 Ill. Comp. Stat. 5/2-1(h). The remaining statutes comprising the “IllinoisEscheats Act” outline the procedure the state has totake to secure the property. For example, 755 Ill.Comp. Stat. 20/2 discusses the duties of the admin-istrator and county clerk in connection with theescheating of personal property. The proceedingsfor real property require the state’s attorney of thecounty to file a complaint on behalf of the county.Notice will be given to all those interested in theestate and require them to appear in court to showcause why the property should not go to thecounty. Further, a publication notice procedure isoutlined in 755 Ill. Comp. Stat. 20/3. 755 Ill. Comp.Stat. 20/5 outlines the judgment requirements.

Any person has 10 years from the death of thedecedent to make a claim against money that hasescheated to the county. Any person (except one

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served a copy of the order under 755 Ill. Comp.Stat. 20/3 or that filed an appearance in the pro-ceeding, or their heirs or assigns) who claims landthat has escheated must file a petition within 5 yearsof the judgment being entered. Thus, 755 Ill. Comp.Stat. 20/7 sets forth the time limits for an individualto object to an escheat.

RIGHTS OF FAMILY MEMBERS TO A DECEDENT’S ESTATE

Rights of a Surviving Spouse

Surviving Spouse’s Elective (Forced) Share

In Illinois a surviving spouse may renounce aninheritance provided for him or her under a willand elect to take a share of the decedent’s estate as prescribed by statute. According to 755 Ill. Comp.Stat. 5/2-8, the surviving spouse may take, afterpayment of all claims, one-third of the decedentspouse’s estate if the decedent left survivingdescendants and one-half the estate if the decedent left no descendants.

The procedure for renouncing a will isdescribed in 755 Ill. Comp. Stat. 5/2-8(b) andexplains that the surviving spouse must file aninstrument within 7 months after admission of thewill to probate or within such further time as maybe allowed by the court under certain specified circumstances. If the spouse files such an instrument it is a complete bar to any claim the spouse mayhave under the will.

If the surviving spouse decides to take basedon the statutory law, and this election causesanother person’s inheritance to be affected, thecourt shall abate or add to the legacies in a wayas to apportion the loss or advantage among thelegatees in proportion to the amount and value of their legacies. See 755 Ill. Comp. Stat. 5/2-8,755 Ill. Comp. Stat. 5/2-9, and 755 Ill. Comp. Stat. 5/15-4.

Effect of Divorce and Marriage on a Spouse’s Rights

The granting of a judgment of the dissolution of amarriage or the declaration of the invalidity of amarriage revokes every legacy given to the testa-tor’s former spouse in a will executed before the

entry of such judgment. The will takes effect as ifthe former spouse had died before the testator. 755Ill. Comp. Stat. 5/4-7(b).

Rights of Children (Issue)

Adopted Children

The general rule in Illinois is that an adopted childis a descendant of the adopting parent and is enti-tled to inherit from the adopting parent and anylineal and collateral kindred of the adopting parent.An exception exists which states that the adoptedchild will only be able to inherit from the adoptingparent but not the adopting parent’s lineal or collat-eral kin if the adopted child is adopted after attain-ing the age of 18 years and the child never residedwith the adopting parent before attaining the age of18. See 755 Ill. Comp. Stat. 5/2-4(a).

Further, an adopting parent and the lineal andcollateral kindred of the adopting parent shallinherit property from an adopted child. Thisexcludes the natural parent and the lineal and col-lateral kindred of the natural parent from inheritingfrom the child under the laws of intestate succes-sion. 755 Ill. Comp. Stat. 5/2-4(b).

The statute continues to be even more specificand should be consulted more closely if an issuewith an adopted child arises.

Nonmarital Children

In Illinois, the rule regarding inheritance between achild born out of wedlock and his or her parentand other relatives rests on the concept of whethera parent qualifies as an “eligible parent.” An eligibleparent is defined as a parent of the child who,during the child’s lifetime, was acknowledged asthe child’s parent, established a parental relation-ship with the child, and supported the individual asthe parent’s child. If both parents are deemed to beeligible parents, then the Illinois statutes of intestatesuccession come into effect. If a parent is in arrearsof in excess of 1 year’s child support, the parentwill not receive an inheritance from the child untilthe court determines otherwise.

If neither parent is an eligible parent, then theparents will be treated as predeceasing the dece-dent and the estate will be distributed as providedin the Illinois statutes of intestate succession.

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If one parent is determined to be an eligibleparent, the estate will be distributed first to a surviv-ing spouse, children, and issue of children as pro-vided in the Illinois statutes of intestate succession.Next, the estate would be distributed to the eligibleparent and any descendants of the eligible parent.The eligible parent would receive one-half of theestate and any descendants of the eligible parentwould receive one-half of the estate per stirpes.

If the one eligible parent is not living, the estategoes to the grandparent on the eligible parent’s sideof the family, or the descendant of such grandpar-ent. If there is no grandparent or descendant of thegrandparent, the estate would be distributed to thegreat-grandparents and their descendants on the eligible parent’s side of the family. Finally, if thereare no living relatives, the estate escheats.

The child born out of wedlock is an heir of hisor her mother and any maternal ancestor. If thefather has acknowledged paternity during his life-time, or at any time a decedent has been adjudgedto be the father, the child is an heir of his fatherand any paternal ancestor. The statute that governsinheritance with regard to children born out ofwedlock is 755 Ill. Comp. Stat. 5/2-2.

Pretermitted (Omitted) and PosthumousChildren

A child that is born after the will is executed willinherit from the testator the portion of the estatethat he or she would be entitled to if the testatorhad died intestate. If the child is provided for underthe will, he or she will inherit as the will provides.If it appears by the will that the testator intended todisinherit the child, he or she will receive nothing.755 Ill. Comp. Stat. 5/4-10. Under 755 Ill. Comp.Stat. 5/2-3, a posthumous child will receive thesame share of an estate as if the child was bornduring the decedent’s lifetime.

Disinheritance of Heirs (Children andOthers) by Statute

Illinois law provides that a person who intentionallycauses the death of another shall be treated as pre-deceasing the decedent and will not receive anyproperty from the decedent whether as an heir,beneficiary, legatee, joint tenant, etc. 755 Ill. Comp. Stat. 5/2-6.

For an interesting common law interpretation ofthis statute, see In re Mueller, 275 Ill. App. 3d 128,655 N.E.2d 1040, appeal denied, 164 Ill. 2d 564, 660N.E.2d 1269 (1995).

Illinois also extends disinheritance in 755 Ill.Comp. Stat. 5/2-6.2 to those convicted of financialexploitation, abuse, or neglect of the deceased eld-erly person or person with disabilities unless thedeceased victim knew of the conviction and clearlystated his intent to leave the property to the con-victed person. Additionally, if a person is convictedof a certain violation under the Illinois CriminalCode against the deceased, that person will notreceive any property benefit or other interest byreason of the death of the victim of that offense,whether as heir, legatee, beneficiary, joint tenant,tenant by the entirety, survivor, appointee, or inany other capacity. 755 Ill. Comp. Stat. 5/2-6.6. In both instances, the property will pass as if theconvicted person had predeceased the victim.

Illinois law also prevents a parent from inherit-ing from a minor or dependent child who has will-fully neglected said child for more than year priorto the child’s death. The statute further defineswhat is considered to be neglect.

Additional Rights or Protection for aSurviving Spouse and Children

Homestead Exemption

With regard to the administration and distributionof real estate, an Illinois statute gives power to thecourt to use the real estate to satisfy creditors.However, it provides that a court may set off theamount of the homestead exemption and order thesale of the balance of the premises or, if the valueof the premises cannot be divided, sell the realestate free of the homestead exemption. The con-sent of the person entitled to the land is immaterial.The court will determine the value of the home-stead and shall order that a sum of money equal tothe gross value of the homestead be paid to thatperson from the proceeds of the sale. 755 Ill.Comp. Stat. 5/20-6(d).

Family or “Widow’s” Allowance

Illinois law provides for an award of allowance to aspouse and children in 755 Ill. Comp. Stat. 5/15-1through 755 Ill. Comp. Stat. 5/15-4.

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A surviving spouse may receive a sum ofmoney that the court determines is reasonable forthe support of the spouse in a manner in which thespouse is accustomed to living for the period of 9months after the death of the decedent. The awardwill be paid to the spouse at such time, notexceeding three installments, as the court directs.The amount will not be less than $10,000. 755 Ill.Comp. Stat. 5/15-1.

A minor child or an adult dependent childliving with the spouse may also be awarded a rea-sonable sum of money for support; however, themoney will be paid to the surviving spouse. Theamount will not be less than $5000 per minor child.755 Ill. Comp. Stat. 5/15-1.

If the minor or adult dependent child is notliving with the surviving spouse, a sum of moneymay be awarded to benefit and support the childfor the period of 9 months after the death of thedecedent. The amount shall be paid to such personas the court directs for the benefit of the child. 755Ill. Comp. Stat. 5/15-2.

In Illinois, an allowance is requested by peti-tion, the court makes a determination, and a copyof the award is mailed or delivered to each personin whose favor the award is made. 755 Ill. Comp.Stat. 5/15/-3.

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CHAPTER 5

WILLS: VALIDITY REQUIREMENTS,MODIFICATION, REVOCATION, AND CONTESTS

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REQUIREMENTS FOR THE CREATIONOF A VALID WILL

Intent of the Testator

Precedent and common law requires that the testator understand the business that the testator is engaged in when making his or her will, to have knowledge of the natural objects of his or her bounty, and to make disposition of propertyaccording to some plan.

Capacity of the Testator

The testator must be of sound mind and memoryand have attained the age of 18 years old. 755 Ill.Comp. Stat. 5/4-1.

Formal Requirements of a Will

According to Illinois statute, the will must be inwriting. Illinois does not allow holographic ornuncupative wills. Illinois has made provisions in755 Ill. Comp. Stat. 5/4-3 for proxy signature, andtwo credible witnesses are also required for avalid will. 755 Ill. Comp. Stat. 5/4-6, states that abeneficiary can act as a witness but with conse-quences. The beneficiary may not receive thelegacy stated in the will unless there are a suffi-cient number of witnesses other than this benefici-ary signing the will. Even then, the beneficiarymay still forfeit any portion of the legacy that ismore than what he or she would have receivedhad there been no will.

Signature of the Testator

Illinois does not have specific provisions for eitherthe testator’s or witnesses’ signatures except thatthe will must be signed in the presence of the testa-tor at his or her direction with two or more wit-nesses. 755 Ill. Comp. Stat. 5/4-3.

Signatures of Witnesses

See notation regarding “Signature of the Testator”above.

REVOCATION AND REJECTION OF A WILL

Illinois has a provision for revoking a will by physi-cal act, execution of a later will that is inconsistentwith the prior will, and by the execution of aninstrument declaring the previous will has beenrevoked as stated in 755 Ill. Comp. Stat. 5/4-7.Illinois’ revocation statute 755 Ill. Comp. Stat. 5/4-7states that a revoked will cannot be revived otherthan by its reexecution, or by an instrument declar-ing the revival which is signed and attested in themanner prescribed.

Revocation by Physical Act

The testator can revoke a will in Illinois by burning,canceling, tearing, or obliterating it. The testator can do this or may have some person do this in his or her presence and by his or her direction and consent. 755 Ill. Comp. Stat. 5/4-7.

Lost Wills

Illinois does not have any statutory provisions onlost wills. However, Illinois common law states thatthere is a presumption that a lost will is revoked ifit was in the custody of the testator.

Revocation by Operation of Law

An act of dissolution of marriage or declaration ofinvalidity of the marriage of the testator will revokea will. The will then takes effect in the same manneras if the former spouse had died before the testator.755 Ill. Comp. Stat. 5/4-7.

Revocation by Subsequent Writing

Illinois statute specifies that the later will must beinconsistent with the prior will in order to revokeit, or that a later will must declare that the priorwill is revoked. 755 Ill. Comp. Stat. 5/4-7.

WILL CONTESTS

Who Can Contest a Will

According to 755 Ill. Comp. Stat. 5/8-1, any inter-ested person may contest a will within 6 monthsafter the admission of the will to probate. A trial by

jury may also be requested. The contestant willneed to prove, first, the invalidity of the will. Oncethe contestant’s case is over, the proponent maypresent evidence to sustain the will. Illinois states itis the representative’s duty to defend a proceedingto contest the validity of the will or prosecute anappeal from the judgment.

Grounds for Contesting a Will

Illinois relies on common law and precedent toestablish a cause of action to contest a will. Thegeneral statute states only that the will can becontested on the grounds that it is not the will ofthe testator. Successfully prosecuted case law pres-ents alternative causes of action, such as testamen-tary capacity, undue influence, and revocation ofthe will.

In Terrorem or “No Contest” Clause—A Forfeiture Clause

Though Illinois recognizes that an in terroremclause is valid, they are interpreted very strictlythrough common law and will only be enforced if they are not against public policy.

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CHAPTER 6

PREPARATION TO DRAFT A WILL:CHECKLISTS AND THE CONFERENCE

WITH THE CLIENT

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Though Illinois law does not require checklistswhen preparing to draft a will, checklists providethe paralegal and the attorney with a written planon how to approach a client’s needs. Checklists

help prevent errors when used in the client inter-view by making sure all pertinent information isrecorded.

CHAPTER 7

FINAL DRAFT AND EXECUTION

OF A VALID WILL

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Simultaneous Death Clause

Illinois does have a simultaneous death clause, 755Ill. Comp. Stat. 5/3-1, which states that in the absenceof any evidence that the persons have died otherthan simultaneously, the property of each person will be disposed of as if he or she had survived.

Testamentary Trust Clause

Illinois provides for testamentary trust clauses in755 Ill. Comp. Stat. 5/4-4.

Testimonium Clause

As is the case with most states, Illinois does notspecify wording for a testimonium clause. SeeChapter 5 for the requirements of a valid will.

Testator’s Signature

See Chapter 5 for requirements of a valid will.

Attestation Clause of Witnesses

As is the case with most states, Illinois does notspecify wording for an attestation clause. SeeChapter 5 for the requirements of a valid will.

Witnesses’ Signatures and Addresses

Though Illinois does not require the addresses ofthe witnesses to the will, it is good practice to

include this information so that when the will isprobated, the witnesses can be located.

ADDITIONAL NONTESTAMENTARYDOCUMENTS

Self-Proving Affidavit Clause ThatCreates a Self-Proved Will

Illinois provides for a will to be proved in 755 Ill.Comp. Stat. 5/6-4 with an attestation clause or affi-davit attached to the petition to admit the will toprobate.

Power of Attorney

Illinois has enacted Act 45, the “Illinois Power ofAttorney Act.” It is found in 755 Ill. Comp. Stat.45/2-1 through 755 Ill. Comp. Stat. 45/4-12. In par-ticular, 755 Ill. Comp. Stat. 45/2-1 through 755 Ill.Comp. Stat. 45/2-11 focuses on durable powers ofattorney. The purpose of the act was to enableeach person to have the right to appoint an agentto deal with property or make personal and health-care decisions for the individual. This right couldonly be fully effective if the principal can empowerthe agent to act throughout the principal’s lifetime,including during periods of disability, and be cer-tain that third parties will honor the agent’s author-ity. 755 Ill. Comp. Stat. 45/2-1. For the statutoryshort form power of attorney for property, see 755Ill. Comp. Stat. 45/3-3, and for explanations of thepowers granted in it, see 755 Ill. Comp. Stat. 45/3-4.

RIGHT TO DIE: LAWS AND RELATEDADVANCE MEDICAL DIRECTIVEDOCUMENTS

Living Will: Death with Dignity

Illinois provides for living wills in the “IllinoisLiving Will Act” (755 Ill. Comp. Stat. 35/3). Theprovisions in Illinois are similar to those in thetext, and the Illinois statute provides sample word-ing for living will declarations. A living will exe-cuted in another state, according to that state’s

laws on living wills or executed in accordancewith the laws in Illinois, will be honored inIllinois. 755 Ill. Comp. Stat. 35/9(h). The declarantof a living will may revoke it at any time by fol-lowing the criteria set out in 755 Ill. Comp. Stat.35/5. And in the event that the patient is an organdonor as well, the attending physician may pro-vide temporary treatment appropriate for organdonation procedures regardless of the living will.755 Ill. Comp. Stat. 35/6. The following is thestatutory living will.

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DECLARATION

This declaration is made this _____ day of _____ (month, year). I, _____, being of sound mind, willfullyand voluntarily make known my desires that my moment of death shall not be artificially postponed.

If at any time I should have an incurable and irreversible injury, disease, or illness judged to be aterminal condition by my attending physician who has personally examined me and has determinedthat my death is imminent except for death-delaying procedures, I direct that such procedures whichwould only prolong the dying process be withheld or withdrawn, and that I be permitted to die natu-rally with only the administration of medication, sustenance, or the performance of any medical proce-dure deemed necessary by my attending physician to provide me with comfort care.

In the absence of my ability to give direction regarding the use of such death delaying procedures,it is my intention that this declaration shall be honored by my family and physician as the final expres-sion of my legal right to refuse medical or surgical treatment and accept the consequences from such arefusal.

Signed ________________________

City, County, and State of Residence ______________________________

The declarant is personally known to me and I believe him or her to be of sound mind. I saw thedeclarant sign the declaration in my presence (or the declarant acknowledged in my presence that heor she had signed the declaration) and I signed the declaration as a witness in the presence of thedeclarant. I did not sign the declarant’s signature above for, or at, the direction of the declarant. At thedate of this instrument, I am not entitled to any portion of the estate of the declarant according to thelaws of intestate succession or to the best of my knowledge and belief, under any will of declarant ofother instrument taking effect at declarant’s death, or directly financially responsible for declarant’smedical care.

Witness ________________________

Witness_________________________

Medical Power of Attorney

Illinois has a “Powers of Attorney for Health Care”law that provides for the selection of an agent tomake health-care decisions for an individual who

becomes incapable of making those decisions dueto a physical or mental condition. 755 Ill. Comp.Stat. 45/4-1 through 755 Ill. Comp. Stat. 45/4-12.The following is a sample of the Illinois statutoryshort form for power of attorney for health care.

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ILLINOIS STATUTORY SHORT FORM POWER OF ATTORNEY FOR HEALTH CARE

(NOTICE: THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIG-NATE (YOUR “AGENT”) BROAD POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU, INCLUD-ING THE POWER TO REQUIRE, CONSENT TO, OR WITHDRAW ANY TYPE OF PERSONAL CARE ORMEDICAL TREATMENT FOR ANY PHYSICAL OR MENTAL CONDITION AND TO ADMIT YOU TO ORDISCHARGE YOU FROM, ANY HOSPITAL, HOME, OR OTHER INSTITUTION. THIS FORM DOES NOTIMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS; BUT WHEN POWERS AREEXERCISED, YOUR AGENT WILL HAVE TO USE DUE CARE TO ACT FOR YOUR BENEFIT AND INACCORDANCE WITH THIS FORM AND KEEP A RECORD OF RECEIPTS, DISBURSEMENTS, AND SIG-NIFICANT ACTIONS TAKEN AS AN AGENT. A COURT CAN TAKE AWAY THE POWERS OF YOURAGENT IF IT FINDS THE AGENT IS NOT ACTING PROPERLY. YOU MAY NAME SUCCESSOR AGENTSUNDER THIS FORM BUT NOT COAGENTS, AND NO HEALTH-CARE PROVIDER MAY BE NAMED.UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THIS POWER IN THE MANNER PROVIDEDBELOW, UNTIL YOU REVOKE THIS POWER OR A COURT ACTING ON YOUR BEHALF TERMINATESIT, YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT YOUR LIFETIME, EVENAFTER YOU BECOME DISABLED. THE POWERS YOU GIVE YOUR AGENT, YOUR RIGHT TO REVOKETHOSE POWERS AND THE PENALTIES FOR VIOLATING THE LAW ARE EXPLAINED MORE FULLY INSECTIONS 4-5, 4-6, 4-9, AND 4-10(b) OF THE ILLINOIS “POWERS OF ATTORNEY FOR HEALTH-CARELAW” OF WHICH THIS FORM IS A PART. THAT LAW EXPRESSLY PERMITS THE USE OF ANY DIFFER-ENT FORM OF POWER OF ATTORNEY YOU MAY DESIRE. IF THERE IS ANYTHING ABOUT THISFORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.)

POWER OF ATTORNEY made this _________________________________________________

day of ________________________________________________________________________

(month) (year)

1. I, ________________________________________________________________________

(insert name and address of the principal)

hereby appoint:________________________________________________________________________

(insert name and address of agent)

as my attorney-in-fact (my “agent”) to act for me and in my name (in any way I could act in person)to make any and all decisions for me concerning my personal care, medical treatment, hospitalizationand health care, and to require, withhold, or withdraw any type of medical treatment or procedure,even though my death may ensue. My agent shall have the same access to my medical records that I have, including the right to disclose the contents to others. My agent shall also have full power to

(continued )

19

authorize an autopsy and direct the disposition of my remains. Effective upon my death, my agent hasthe full power to make an anatomical gift of the following (initial one):

. . . Any organs, tissues, or eyes suitable for transplantation or used for research or education.

. . . Specific organ. . . .

(THE ABOVE GRANT OF POWER IS INTENDED TO BE AS BROAD AS POSSIBLE SO THAT YOURAGENT WILL HAVE AUTHORITY TO MAKE ANY DECISION YOU COULD MAKE TO OBTAIN OR TERMI-NATE ANY TYPE OF HEALTH CARE, INCLUDING WITHDRAWAL OF FOOD AND WATER AND OTHERLIFE-SUSTAINING MEASURES, IF YOUR AGENT BELIEVES SUCH ACTION WOULD BE CONSISTENTWITH YOUR INTENT AND DESIRES. IF YOU WISH TO LIMIT THE SCOPE OF YOUR AGENT’S POWERSOR PRESCRIBE SPECIAL RULES OR LIMIT THE POWER TO MAKE AN ANATOMICAL GIFT, AUTHORIZEAUTOPSY, OR DISPOSE OF REMAINS, YOU MAY DO SO IN THE FOLLOWING PARAGRAPHS.)

2. The powers granted above shall not include the following powers or shall be subject to the followingrules or limitations (here you may include any specific limitations you deem appropriate, such as: your owndefinition of when life-sustaining measure should be withheld; a direction to continue food and fluids orlife-sustaining treatment in all events; or instruction to refuse any specific types of treatment that are incon-sistent with your religious beliefs or unacceptable to you for any other reason, such as blood transfusion,electro-convulsive therapy, amputation, psychosurgery, voluntary admission to a mental institution, etc.):

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

(THE SUBJECT OF LIFE-SUSTAINING TREATMENT IS OF PARTICULAR IMPORTANCE. FOR YOURCONVENIENCE IN DEALING WITH THAT SUBJECT, SOME GENERAL STATEMENTS CONCERNINGTHE WITHHOLDING OR REMOVAL OF LIFE-SUSTAINING TREATMENT ARE SET FORTH BELOW. IF YOU AGREE WITH ONE OF THESE STATEMENTS, YOU MAY INITIAL THAT STATEMENT; BUT DO NOT INITIAL MORE THAN ONE):

I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided orcontinued if my agent believes the burdens of the treatment outweigh the expected benefits. I want myagent to consider the relief of suffering, the expense involved, and the quality as well as the possibleextension of my life in making decisions concerning life-sustaining treatment.

Initialed ___________________________

I want my life to be prolonged and I want life-sustaining treatment to be provided or continuedunless I am in a coma, which my attending physician believes to be irreversible, in accordance withreasonable medical standards at the time of reference. If and when I have suffered irreversible coma, Iwant life-sustaining treatment to be withheld or discontinued.

Initialed ___________________________

I want my life to be prolonged to the greatest extent possible without regards to my condition, thechances I have for recovery, or the cost of the procedures.

Initialed ___________________________(continued )

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(THIS POWER OF ATTORNEY MAY BE AMENDED OR REVOKED BY YOU IN THE MANNER PRO-VIDED IN SECTION 4-6 OF THE ILLINOIS “POWERS OF ATTORNEY FOR HEALTH-CARE LAW.”ABSENT AMENDMENT OR REVOCATION, THE AUTHORITY GRANTED IN THIS POWER OF ATTOR-NEY WILL BECOME EFFECTIVE AT THE TIME THIS POWER IS SIGNED AND WILL CONTINUE UNTILYOUR DEATH, AND BEYOND IF ANATOMICAL GIFT, AUTOPSY, OR DISPOSITION OF REMAINS ISAUTHORIZED, UNLESS A LIMITATION ON THE BEGINNING DATE OR DURATION IS MADE BY INI-TIALING AND COMPLETING EITHER OR BOTH OF THE FOLLOWING:)

3. ( ) This power of attorney shall become effective on ____________________________________________________________________________________________________________________________________________________________________________________________________________________

(Insert a future date or event in your lifetime, such as court determination of your disability, whenyou want this power to first take effect.)

4. ( ) This power of attorney shall terminate on ___________________________________________________________________________________________________________________________________________________________________________________________________________________________

(Insert a future date or event, such as court determination of your disability, when you want thispower to terminate prior to your death.)

(IF YOU WISH TO NAME SUCCESSOR AGENTS, INSERT THE NAMES AND ADDRESSES OF SUCHSUCCESSORS IN THE FOLLOWING PARAGRAPH.)

5. If any agent named by me shall die, become incompetent, resign, refuse to accept the office ofagent, or be unavailable, I name the following (each to act alone and successively, in the order named)as successors to such agent:

________________________________________________________________________________________________________________________________________________________________________________________________________________________

For purposes of this paragraph 5, a person shall be considered to be incompetent if and whilethe person is a minor or an adjudicated incompetent or disabled person or the person is unable to give prompt and intelligent consideration to health-care matters, as certified by a licensed physician.

(IF YOU WISH TO NAME YOUR AGENT AS GUARDIAN OF YOUR PERSON, IN THE EVENT ACOURT DECIDES THAT ONE SHOULD BE APPOINTED, YOU MAY, BUT ARE NOT REQUIRED TO,DO SO BY RETAINING THE FOLLOWING PARAGRAPH. THE COURT WILL APPOINT YOURAGENT IF THE COURT FINDS THAT SUCH APPOINTMENT WILL SERVE YOUR BEST INTERESTSAND WELFARE. STRIKE OUT PARAGRAPH 6 IF YOU DO NOT WANT YOUR AGENT TO ACT ASGUARDIAN.)

6. If a guardian of my person is to be appointed, I nominate the agent acting under this power ofattorney as such guardian, to serve without bond or security.

ILLINOIS STATUTORY SHORT FORM POWER OF ATTORNEY FOR HEALTH CARE (CONTINUED)

(continued )

Additionally, the Illinois Anatomical Gift Actestablishes standards for an individual who wish tobecome an organ donor upon death. 755 Ill. Comp.Stat. 50/1-1 through 755 Ill. Comp. Stat. 50/5. Anyperson who is 18 years old and of sound mind maygive all or any part of his body for any purposespecified in the statute. This gift will take effectimmediately upon the death of the individual anddoes not require the consent of any survivors. If aperson has not provided for this, the statute states

who may then consent for the deceased if there isno evidence of opposition by the deceased oforgan donation. 755 Ill. Comp. Stat 50/5-5.

755 Ill. Comp. Stat. 65/10 provides a statutoryform whereby one appoints a person to control thedisposition of one’s remains with specific instruc-tions. Additionally, the website www.lifegoeson.comthrough the Illinois Secretary of State provides additional information regarding organ donationand registration.

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7. I am fully informed as to all the contents of this form and understand the full import of thisgrant of powers to my agent.

Signed __________________________________

(principal)

The principal has had an opportunity to read the above form and has signed the form or acknowl-edged his or her signature or mark on the form in my presence.

_________________________________ residing at __________________________

(witness)

(YOU MAY, BUT ARE NOT REQUIRED TO, REQUEST YOUR AGENT AND SUCCESSOR AGENTS TOPROVIDE SPECIMEN SIGNATURES BELOW. IF YOU INCLUDE SPECIMEN SIGNATURES IN THISPOWER OF ATTORNEY, YOU MUST COMPLETE THE CERTIFICATION OPPOSITE THE SIGNATURESOF THE AGENTS.)

Specimen signatures of agent (and successors). I certify that the signatures of my agent (and suc-cessors) are correct.

__________________________________________

(agent)

__________________________________________

(principal)

__________________________________________

(successor agent)

__________________________________________

(principal)__________________________________________

(successor agent)

CHAPTER 8

INTRODUCTION TO TRUSTS

22

SCOPE OF THE CHAPTER

TERMINOLOGY RELATED TO TRUSTS

760 Ill. Comp. Stat. 5/2 defines the following terms:Trust means a “trust created by a will, deed, agree-ment, declaration, or other written instrument.”

Trustee means the trustee or any successor oradded trustee whether appointed by the documentcreating the trust or by order of the court. It includesan individual and a corporation qualified to admin-ister trusts in Illinois.

THE ESSENTIAL ELEMENTS OF A TRUST

The Settlor:The Creator of the Trust

A person creating a trust may specify in the instru-ment all rights, powers, duties, limitations, andimmunities applicable to the trustee, beneficiary,and others. The trust provisions will control as long as they do not violate the law. 760 Ill. Comp. Stat. 5/3.

The Trustee:The Fiduciary andAdministrator of the Trust

If all beneficiaries of a trust are adults and not inca-pacitated, any written agreement including, but notlimited to, construing any provision of a trust orregarding any duty, power, or action of the trusteebetween a trustee and all of the beneficiaries of thetrust shall be final and binding on the trustee andthe beneficiaries of the trust.

In the trustee’s sole discretion, the trustee mayobtain an opinion of counsel that any agreementproposed to be made is not clearly contrary to theexpress terms of the trust instrument. 760 Ill. Comp.Stat. 5/16.1(d).

Natural or Legal Person as Trustee

A trustee may be either an individual or a corpora-tion qualified to administer trusts in the state ofIllinois. 760 Ill. Comp. Stat. 5/2(2).

Cotrustees

Act 5, “Trusts and Trustees Act,” specifies certainactions a cotrustee can be asked to take. In particu-lar, a trustee may delegate to a cotrustee for anyperiod of time any or all of the trustee’s rights,powers, and duties. 760 Ill. Comp. Stat. 5/4.10.

Removal or Resignation of Trustee

A trustee may resign at any time by written noticeto a living settlor, to a cotrustee if any, and to thethen-entitled beneficiaries of the trust’s income. 760 Ill. Comp. Stat. 5/12.

Powers of the Trustee

In 760 Ill. Comp. Stat. 5/4.01 through 760 Ill. Comp.Stat. 5/4.25, the trustee has the following statutorilycreated powers:

• Sell the trust estate

• Lease property

• Borrow money—mortgage or pledge the trustestate

• Grant easements, subdivide, or improve realestate

• Appoint a trustee to act in another jurisdiction

• Open bank accounts and obtain safe depositboxes

• Exercise all powers in connection with stocks,bonds, or other securities

• Pay taxes and reasonable expenses

• Hire attorneys, auditors, financial advisers, andother agents

• Delegate rights to a cotrustee

• Compromise, contest, prosecute, or abandonclaims

• Execute contracts, notes, conveyances, andother instruments

• Receive and administer additional property

• Invest property

• Deal with an executor or trustee of any trust in which a beneficiary has an interest

• Equitably divide or distribute cash

• Rely upon an affidavit, certificate, or letter asgenuine evidence to make a payment or distri-bution in good faith without liability

• Purchase and keep insurance to protect thetrust estate

• Distribute income and discretionary amounts of principal

• Manage a farm property

• Operate real estate to develop oil, gas, andother minerals

• Continue an unincorporated business

• Continue a partnership business

• Sever a trust estate or consolidate two or moretrusts

Duties of the Trustee

Illinois has enacted Act 65, the “FiduciaryObligations Act.” The fiduciary duties required of atrustee are included in 760 Ill. Comp. Stat. 65/0.01through 760 Ill. Comp. Stat. 65/12. The act specifiesthat a fiduciary includes a trustee under any trust:expressed, implied, resulting, or constructive.760 Ill.Comp. Stat. 65/1(1).

Duty to Invest the Trust Property

Illinois has enacted the “Prudent Investor Rule” in760 Ill. Comp. Stat. 5/5(a). The rule states that atrustee has a duty to invest and manage trust assetsas a prudent investor would considering the pur-poses, terms, distribution requirements, and othercircumstances of the trust. The trustee must use rea-sonable care and invest the estate using an invest-ment strategy that should incorporate risk and returnobjectives suitable to the trust. The trustee mayinvest in every kind of property and type of invest-ment, subject to this section. The trustee’s decisionsare to be judged in relationship to the anticipatedeffect on the trust portfolio based on the prevailingcircumstances at the time of the decision. The 760Ill. Comp. Stat. 5/5(a)(2) states, “The prudentinvestor rule is a test of conduct and not of resultingperformance.” The trustee has a duty to diversifyunless, under the circumstances, the trustee reason-ably believes it is in the interests of the beneficiarynot to diversify. The trustee must review the trustassets and make determinations concerning keepingand getting rid of preexisting investments. Theinvestment strategy should consider both the reason-able production of income and safety of capital.

A trustee may consider the following circum-stances in determining the investment strategy:

• General economic conditions

• Effect on inflation

• Tax consequences

• Each investment’s role in the overall portfolio

• Expected total return

• Incurrence of only reasonable and appropriatecosts

Duty to Make Payments of Income andPrincipal to the Named Beneficiaries

A trust shall be administered by the trustee withdue regard to both the interests of income benefici-aries and remaindermen. Illinois has enacted the“Principal and Income Act” that governs howincome and principal should be distributed andspent. This is found in 760 Ill. Comp. Stat. 15/1through 760 Ill. Comp. Stat. 15/17.

The trustee has the power to distribute incomeand discretionary amounts of principal in one ormore of the following ways if the trustee believes it

23

to be for the best interests of a beneficiary whenthe trustee believes the beneficiary is under legaldisability or is unable to properly manage his orher affairs because of illness, physical or mentaldisability, or any other cause:

• Directly to the beneficiary

• To a duly appointed guardian of the beneficiary

• To a custodian for the beneficiary under the“Uniform Transfers to Minors Act”

• To an adult relative of the beneficiary

• By expending the money or using the propertydirectly for the benefit of the beneficiary 760 Ill.Comp. Stat. 5/4.20

Duty to Account

According to Illinois statute, a trustee is required to atleast annually furnish an account to the beneficiaries.It should show the receipts, disbursements, andinventory of the trust estate. Also, upon terminationof the trust, the trustee shall furnish to the beneficiar-ies a final account for the period from the date ofthe last account to the date of distribution showingthe inventory, receipts, disbursements, and distribu-tions of the trust estate. 760 Ill. Comp. Stat. 5/11.

Liability of Trustee to Beneficiary

The trustee is not liable to a beneficiary for thetrustee’s reasonable and good faith reliance on the express provisions of the trust. 760 Ill. Comp.Stat. 5/5(b).

Compensation for a Trustee

Under 760 Ill. Comp. Stat. 5/7, the trustee shall bereimbursed for all proper expenses incurred inmanaging the trust and is entitled to reasonablecompensation for services rendered.

The Beneficiary:The Recipient of theTrust Property or Benefits

Nature of the Beneficiary’s Interest

The Illinois statutes define primary beneficiary as aperson who is currently entitled to receive any por-tion of the trust income or principal or will receive,or be entitled to withdraw, a portion of the princi-pal of the trust if the beneficiary survives to thefinal date of distribution with respect to the benefi-ciary’s share.

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CHAPTER 9

CLASSIFICATION OF TRUSTS, THE LIVING

TRUST, AND OTHER SPECIAL TRUSTS

25

CLASSIFICATION OF TRUSTS

Express Trusts—Private versus Public(Charitable)

Public Trust

Illinois has enacted the “Charitable Trust Act,” 760 Ill.Comp. Stat. 55/1 to 760 Ill. Comp. Stat. 55/19. Illinoismodifies the common law rule of perpetuities in 760Ill. Comp. Stat. 50/8 and in the “Illinois Vesting Act”found in 765 Ill. Comp. Stat. 310/1 to 310/1.1.

Implied Trusts—Resulting and Constructive

All express trusts dealing with interest in land mustbe manifested and proved by a writing signed bythe party who is to declare such trust, or by his orher last will in writing, or they shall be utterly voidand of no effect. However, a resulting trust, or atrust created by construction, implication, or opera-tion of law, need not be in writing and may beproved by parole (oral) evidence. 740 Ill. Comp.Stat. 80/9.

Miscellaneous Trusts

Spendthrift Trusts

A court may not set aside a trust for the purpose of payment of a debt or judgment. However, if thebeneficiary receives a set sum or percentage fromthe trust, this may be used to pay the debt, and

claims of child support may be paid from the proceeds of the trust. 735 Ill. Comp. Stat. 5/2-1403.

Sprinkling Trusts

Illinois describes the duties of the trustee to distrib-ute to the beneficiary according to the beneficiary’sbest interests in 760 Ill. Comp. Stat. 5/4.20 the prin-cipal and income if the beneficiary is physically ormentally disabled.

LIVING (INTER VIVOS) TRUSTS

According to 735 Ill. Comp. Stat. 5/13-223, the timeto protest the inter vivos trust is during, and notafter, the probating of the will.

Pour-Over Wills

In Illinois, a testator may bequeath any real andpersonal estate to a trustee of a trust, which is inexistence when a trust is made and identified in thetestator’s will. Even though the trust is subject tomodification, revocation, or termination, the estatewill be governed by the terms and provisions ofthe trust instrument unless the testator’s will pro-vides otherwise.

If the trust terminates before the testator’sdeath, the bequest shall take effect according to theterms of the trust instrument at the time the trust isterminated unless the will provides otherwise. 755Ill. Comp. Stat. 5/4-4.

Trust Administration

760 Ill. Comp. Stat. 15/6 describes the administra-tion procedures of a decedent’s trust. The trust willbe distributed after all expenses incurred with thesettlement of the estate are paid. These includedebts, funeral expenses, estate taxes, familyallowances, fees of attorneys and representatives,and court costs.

The federal government provides sample formsonline for the various types of trusts including intervivos and testamentary trusts and charitable trusts.The site is <http://www.irs.gov/irb>

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CHAPTER 10

ESTATE PLANNING

27

Federal Gift and Estate Taxes

In Illinois, from 2006 through 2010, Illinois limits theexclusion to $2,000,000. This results in a differencefrom the federal government’s exempt amounts.However, similar to the federal exclusion, this provi-sion will expire after 2010. Upon expiration, theexempt amount will decrease to $1,000,000, thesame as the federal exempt amount. In Illinois,

several bills are being introduced that would stopthe repeal of the death tax and eliminate it alltogether. A paralegal will want to remain current on all of the changes in this area of the law as it issubject to a considerable amount of debate in thenext few years.

The discussion in the text is similar to practicein Illinois.

CHAPTER 11

LONG-TERM CARE

28

The discussion in the text in similar to what is prac-ticed in Illinois.

CHAPTER 12

PERSONAL REPRESENTATIVES: TYPES, PREPROBATE DUTIES, AND APPOINTMENT

29

TYPES OF PERSONALREPRESENTATIVES

Anyone who is 18 years or over, is a resident of theUnited States, is of sound mind, is not disabled, andhas not been convicted of a felony may act as apersonal representative. 755 Ill. Comp. Stat. 5/6-13.

In Illinois, the following persons are entitled topreference when obtaining the issuance of letters ofadministration:

• The surviving spouse or any person nominatedby him or her

• The legatees or any person nominated by them

• The children or any person nominated by them

• The grandchildren or any person nominated bythem

• The parents or any person nominated by them

• The brothers and sisters or any person nomi-nated by them

• The nearest kindred or any person nominatedby them

• The representative of the estate of a deceasedward

• The public administrator

• A creditor of the estate

If more than one person is eligible to receive let-ters of administration, then the court decides to whomthe letters will be issued. 755 Ill. Comp. Stat. 5/9-3.

Illinois provides for a public administrator totake on the duties of a personal administrator ifthere is no person that has a prior right to adminis-ter the estate. The public administrator of the county

in which the decedent was a resident or the countywhere the decedent’s property is located would perform these duties. 755 Ill. Comp. Stat. 5/13-1.Additionally, the duties of the public administratorare to secure the decedent’s property from waste ormismanagement until letters of administration canbe issued to the person entitled to them. 755 Ill.Comp. Stat. 5/13-1 and 755 Ill. Comp. Stat. 5/13-4.

Illinois includes the administrator de bonis nonin the definition of administrator. 755 Ill. Comp.Stat. 5/1-2.01. The administrator de bonis non issimilar to the administrator cum testamento annexoor administrator C.T.A.

PREPARATION FOR PROBATE AND ESTATE ADMINISTRATION—GENERAL OVERVIEW

Illinois statutes detail the administrator’s dutiesbefore the issuance of letters of administration in755 Ill. Comp. Stat. 5/6-14 as organ donation, burial procedures, payment of burial expenses, and preserving the estate. The general responsibilities of the personal representatives for Illinois are con-sistent with the text.

Preprobate Duties of the PersonalRepresentative and Paralegal

Search for and Obtain the Will and OtherPersonal and Business Records

It is the duty of the person who has the decedent’swill in his or her possession to present the will

immediately (no longer than 30 days) to the courtupon the death of the decedent. 755 Ill. Comp. Stat.5/6-1. A petition must accompany the will in orderfor it to be admitted to probate. The petition shouldcontain the following information:

• The name and place of residence of the testatorat the time of his or her death

• The date and place of death

• The date of the will and the fact that petitionerbelieves the will to be a valid will

• The approximate value of the decedent’s estate

• The names and addresses of the heirs and ifany are minors

• The name and address of the executor

• The name and address of the personal fiduciary

755 Ill. Comp. Stat. 5/6-2

The executor has 30 days from the date ofthe decedent’s death to file the petition for thewill to be admitted to probate or to declare if he or she refuses to be executor. 755 Ill. Comp.Stat. 5/6-3.

Appointment Procedure—The Beginning

An attestation clause signed by the witness that wasattached to the will, or an affidavit signed by thewitnesses and attached to the will, may be attachedto the petition accompanying the will in the placeof having witnesses appear in court. 755 Ill. Comp.Stat. 5/6-4.

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CHAPTER 13

PROBATE AND ESTATE ADMINISTRATION

31

PROBATE OR ESTATE ADMINISTRATION

Small Estate Settlement andAdministration

Collection by Affidavit

Article 25, “Small Estates of the Probate Act,” outlinesthe method of probating a small estate upon affidavit.This is contained in 755 Ill. Comp. Stat. 5/25-1through 755 Ill. Comp. Stat. 5/25-4.

Illinois provides that payment or delivery of asmall estate upon affidavit may occur when anyperson or corporation (1) indebted to or holding thedecedent’s personal estate, (2) controlling the rightof access to the decedent’s safety deposit box, or (3)acting as registrar or transfer agent is furnished witha small estate affidavit. That person or corporationshall pay the debt, allow access to the safety depositbox, deliver the personal estate, or transfer the inter-est. 755 Ill. Comp. Stat. 5/25-1(a). 755 Ill. Comp. Stat.5/25-1(b) sets forth the statutory form of the smallestate affidavit that must be presented to the court.

The statute then demonstrates the form of theaffiant’s affidavit. In general, it contains the affiant’saddress, the decedent’s name, the decedent’s date ofdeath, an attached copy of the death certificate, thedecedent’s residence at the time of death, a statementthat the gross value of the personal estate does notexceed $100,000, a list of each asset and its fairmarket value, a statement that all funeral expenseshave been paid or the amount of unpaid funeralexpenses and the name and address of who is enti-tled to be paid, that there is no known unpaidclaimant or contested claim except for those unpaid

funeral expenses previously listed, and the namesand residences of any surviving spouse, minor children, and adult dependent children. The affidavitalso contains the award that is allowable to the surviv-ing spouse ($10,000), or the minor children and adultdependent children ($5000 for each one) if appropri-ate. If the decedent died intestate, the affidavit con-tains the names and residences of each heir and theportion of the estate each would receive. If the dece-dent died testate, the affidavit notes that the will hasbeen filed with the appropriate clerk of court. A certi-fied copy of the will is attached. The affidavit wouldalso contain a list of the names and residences oflegatees and a statement of how the property shouldbe distributed. 755 Ill. Comp. Stat. 5/25-1(b).

Once payment, delivery, transfer, or accessoccurs, the person or corporation is released as if the action had been made to the personal representative. 755 Ill. Comp. Stat. 5/25-1(d).

The affiant, the person signing the affidavit,signs the document under oath.

If a person who receives an affidavit refuses topay or deliver, the amount or property may be recov-ered in a civil action. The affidavit is prima facie proofof the facts it includes. 755 Ill. Comp Stat. 5/25-3.

The sale of a very small interest ($2500) in realestate in the interest of a ward is discussed in 755Ill. Comp. Stat. 5/25-4.

Summary Administration

Illinois provides for distribution on summary admin-istration. 755 Ill. Comp. Stat. 5/9-8 and 755 Ill. Comp.Stat. 5/9-9 contain information as to what type of

estates qualify and the procedure to be used.The court will allow summary administration

upon the filing of a petition and after the determi-nation of heirship of the decedent and admission ofthe will. The estates that will qualify must meet thefollowing criteria:

• The gross value of the real and personal estatedoes not exceed $100,000.

• There is no unpaid claim against the estate orall known creditors and the amounts due thenare listed in the petition.

• No tax will be due to the United States or toIllinois for the death of the decedent or alltaxes have been paid.

• No person is entitled to a surviving spouse orchild’s award under the act or, if one is owed,the name and amount of the award are listed inthe petition.

• All heirs and legatees of the decedent haveconsented in writing to the distribution of theestate on summary administration and if one isa minor, consent may be given by a parent,spouse, or other adult in charge of the minor.

• Each distributee gives bond in the value of hisdistributive share.

• The petitioner has published notice informingall persons of the decedent’s death, of the filingof the petition for distribution on summaryadministration, and of the date, time, and placeof the hearing on the petition. Publication of thenotice is required once a week for three (3)successive weeks in a newspaper published inthe county where the petition was filed, and hasfiled proof of publication. Then the court maydetermine the rights of claimants and other per-sons interested in the estate, direct payment ofclaims and distribution on summary administra-tion, and excuse the issuance of letters of officeor revoke them and discharge the personal representative.

Once a person holding the personal estate ofthe decedent receives an authenticated copy of thecourt order, he or she shall pay the indebtedness ordeliver, or transfer, the personal estate in accordancewith the court order. Once the amount is paid,delivered, or transferred, the person is releasedfrom payment or transfer. However, each personthat receives money or property upon this payment

is liable to the extent that the value received maybe owed to another claimant or person having aprior right and is accountable to any representativeof the decedent thereafter appointed.

If a person, upon the receipt of the authenti-cated court order, refuses to pay or deliver theproperty, it may be recovered in a civil action by oron behalf of the person entitled to receive it uponproof of the receipt of the authenticated copy ofthe court order.

COMMENCING PROBATE AND ESTATEADMINISTRATION PROCEEDINGS

Petition for Probate of Will or Petition toProve a Will

In Illinois, a person desiring to have a will admittedto probate must file a petition in the court of theproper county. The petition must state:

• The name and place of the residence of thetestator at the time of his or her death

• The date and place of death

• The date of the will and the fact that the peti-tioner believes the will to be the valid last willof the testator

• The approximate value of the testator’s real andpersonal estate in Illinois

• The names and post office addresses of allheirs and legatees of the testator and if any of them is a minor or disabled person

• The name and post office address of the executor

• Unless supervised administration is requested,the name and address of any personal fiduciaryacting or designated to act

Further, if the will creates or adds to a trust, itmust also state the name and address of the trustee.

If letters of administration with the will annexedare also sought, the petition must state:

• The reason for the issuance of the letters

• Facts showing the right the petitioner has to actas, or nominate, the administrator

• The name and post office address of the personnominated and of each person entitled toadminister the estate

• If the will has been previously admitted to probate, the date of admission

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If the petition indicates that more than one personis entitled to administer the estate, the petitioner mustmail a copy of the petition to each such person andfile a proof of mailing. 755 Ill. Comp. Stat.5/6-2.

Petition for Administration When NoWill Exists

If the decedent dies intestate, anyone desiring tohave letters of administration shall file a petition inthe proper county. The petition shall state, if known:

• The name and place of the decedent’s residenceat the time of death

• The date and place of death

• The approximate value of the real and personalestate in Illinois

• The names and post office addresses of allheirs of the decedent and whether any of themis a minor or disabled

• Name and post office address of the personnominated as administrator

• When letters of admin de bonis non are sought,the reason for the issuance

• The facts showing the right of the petitioner toact as, or to nominate, the administrator

• Unless supervised administration is requested, thename and address of any personal fiduciary actingor designated to act pursuant to section 28-3

This information is found in 755 Ill. Comp. Stat. 5/9-4.

Mail the Notice of Order for Hearing and Affidavit of Mailing Notice to AllInterested Persons Including Creditors

Not less than 30 days before the hearing on the peti-tion to issue letters of administration, the petitionershall mail a copy of the petition, endorsed with thetime and place of the hearing, to each named personin the petition. 755 Ill. Comp. Stat. 5/9-5.

PROBATE COURT PROCEDURE

Hearing on Petition to Prove the Will or Petition for Administration

In Illinois, 755 Ill. Comp. Stat. 5/6-4 prescribes howa will may be admitted to probate. This can be

done by testimony or affidavit of witnesses. Thestatute states that when each of two attesting witnesses to a will state that (1) he or she waspresent and saw the testator or some person in hisor her presence and by his or her direction sign thewill in the presence of the witness, or the testatoracknowledged it to the witness as his or her act, (2)the will was attested by the witness in the presenceof the testator, and (3) he or she believed the testa-tor to be of sound mind and memory at the time ofsigning or acknowledging the will. The will is suffi-ciently proved to admit to probate unless there isproof of fraud, forgery, compulsion, or otherimproper conduct.

These statements may be made by (1) testi-mony before the court, (2) an attestation clausesigned by the witness and forming a part of orattached to the will, or (3) an affidavit which issigned by the witness at or after the time of theattestation and which forms part of the will or isattached to the will or to an accurate facsimile ofthe will.

Selection of the PersonalRepresentative

Illinois statute 755 Ill. Comp. Stat. 5/6-13 outlineswho may act as an executor. The individual mustbe 18 years or older, a resident of the United States,of sound mind, not adjudged to be disabled asdefined in this Act, and not convicted of a felony.The person nominated in the will can then proceedto being declared by the court as the executor. Ifthe person named as executor in the will is notqualified to act at the time of admission of the willto probate, but thereafter becomes qualified andfiles a petition for the issuance of letters, takesoath, and gives bond, the court may issue letterstestamentary to him or her as coexecutor with analready existing executor. If no executor has quali-fied, the court may issue letters testamentary to himand revoke letters of administration.

Persons entitled to obtain letters of administra-tion if no executor is nominated, or who cannotserve, have the following preferences:

• The surviving spouse or any person nominatedby the surviving spouse

• The legatees or any person nominated by them,with preference to legatees who are children

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• The children or any person nominated by them

• The grandchildren or any person nominated bythem

• The parents or any person nominated by them

• The brothers or sisters or any person nomi-nated by them

• The representative of the estate of a deceasedward

• The public administrator

• A creditor of the estate

Only a person qualified to act as administratorunder this act may nominate, with some exceptionsspecified in the statute. 755 Ill. Comp. Stat. 5/9-3.

Order Admitting the Will or GrantingAdministration

The court will grant an order admitting the will toprobate. 755 Ill. Comp. 5/6-10 and Supreme CourtRule 108.

After the court has entered an order admittingor denying the will, the representative or petitionermust mail a copy of the petition to admit the will,or for letters and a copy of the order showing thedate of entry, to each of the testator’s heirs andlegatees whose names and addresses are stated inthe petition not more than 14 days after entry ofthe order. This serves as notice to the heirs andlegatees of the will’s admission into probate andalso explains their rights.

If the address of an heir or legatee is not listed inthe petition, then the representative or petitioner mustpublish a notice once a week for 3 successive weeksin a newspaper published in the county where theorder was entered. The first publication must be donenot more than 14 days after entry of the order andwill describe the order.

The petitioner or representative must file proofof mailing and publication, if publication is required,with the clerk of court.

The notice would not have to be mailed orpublished for an individual that appeared at thehearing or who filed a waiver of notice. 755 Ill.Comp. Stat. 5/6-10.

If instead, letters of administration are granted toan administrator, not more than 14 days after entryof that order, the administrator shall mail a copy ofthe petition to issue letters and a copy of the order

showing the date of its entry to each of the dece-dent’s heirs who was not entitled to notice of thehearing. If an address is not known of any heir, theadministrator must publish a notice once a week for3 successive weeks in a newspaper in the countywhere the order was issued. The first publicationmust not be more than 14 days after the entry of theorder. The administrator shall file proof of mailingand publication, if publication is required, with theclerk of courts.

This notice would not have to be mailed orpublished for an individual that appeared at thehearing or who filed a waiver of notice. 755 Ill.Comp. Stat. 5/9-5.

Issuance of Letters Testamentary orLetters of Administration

Letters testamentary will be issued to the executornamed in the will if he or she qualifies and acceptsthe office unless the issuance is excused. This hap-pens when the will is admitted to probate. 755 Ill.Comp. Stat. 5/6-8.

When a person dies intestate, letters of administra-tion will be issued upon petition unless the issuance ofletters is excused. 755 Ill. Comp. Stat. 5/9-2.

Notice to Creditors

The entire procedure regarding creditors’ claims isgoverned by 755 Ill. Comp. Stat. 5/18-1 through 755Ill. Comp. Stat. 5/18-15.

According to 755 Ill. Comp. Stat. 5/18-3, thepersonal representative must publish, once eachweek for 3 successive weeks in a newspaper pub-lished in the county where the estate is beingadministered and must mail or deliver to eachcreditor of the decedent whose name and addressare known or reasonably ascertainable, a noticestating the death of the decedent, the name andaddress of the personal representative and of hisattorney, and that claims may be filed in or beforethe date stated in the notice.

This date shall be not less than 6 months fromthe date of first publication or 3 months from thedate of mailing or delivery, whichever is later. If theclaim is not filed by the deadline, the creditor isbarred from bringing it.

The personal representative must file proof ofpublication with the clerk of court.

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Appointment of Trustees and Guardians

Illinois statute 755 Ill. Comp. Stat. 5/6-12 governsthe appointment procedures for a guardian ad litemif a minor or disabled person is not adequately rep-resented by the personal fiduciary, or the appoint-ment of the guardian is necessary to protect theward’s interests. The Illinois statute governingappointments of trustees is found in 765 Ill. Comp.Stat. 320/1 and is substantially the same as the dis-cussion in the text.

Order Admitting a Foreign Will to Probate

The Illinois statute governing the admittance andprobate procedure of a foreign will can be found in755 Ill. Comp. Stat. 5/7, and this statute states that ifthe foreign will has been probated in another stateor country, the will can be proved by the submis-sion of the authenticated will and the probate of it.If the will is from a foreign country that does nothave probate proceedings, then the submission ofan authenticated certificate of the legal custodian ofthe will noting the copy is a true copy and that thewill has become operative by the laws of that stateor country is sufficient.

PROCEDURES BEFORE ESTATEDISTRIBUTION

Open the Safe Deposit Box

Illinois has enacted the “Safety Deposit BoxOpening Act” found in 755 Ill. Comp. Stat. 15/0.01through 755 Ill. Comp. Stat. 15/1. A bank or otherholder of a safety deposit box will open the boxand examine the contents in the presence of aperson who furnishes an affidavit which states (a)he or she is interested in the filing of the dece-dent’s will or in burial arrangements, (b) he or shebelieves the box may contain the will or decedent’sburial documents, and (c) he or she is an interestedperson. The act defines interested persons as aperson who, immediately prior to the decedent’sdeath, had a right of access to the box as a deputy,any person named as executor in a copy of thewill, a spouse, an adult descendant, or parent orsibling of the decedent.

Upon the opening of the box, the bank shallremove any document, which appears to be a willor codicil and deliver it to the clerk of circuit court

in the county where the decedent resided or to theclerk of circuit court in the county in which thesafe deposit box is located. The bank may removeany burial documents and deliver them to the inter-ested person. No other contents may be removed.

The bank will not open the box if it hasreceived a copy of letters testamentary or letters of administration or another applicable court order.The bank need not open the box if (a) the box haspreviously been opened, (b) the bank has receivednotice of a written or oral objection, or (c) thedecedent’s key or combination is not available. 755 Ill. Comp. Stat. 15/1.

Collect and Preserve the Decedent’sAssets

Illinois statutes 755 Ill. Comp. Stat. 5/19-1 through755 Ill. Comp. Stat. 5/19-14 govern the administra-tion of the decedent’s personal estate. With permis-sion of the court, the personal representative maylease, sell, mortgage, or pledge the personal estateof the decedent when necessary for the properadministration of the estate. Personal propertyselected by the surviving spouse or child or specifi-cally bequeathed may not be sold, mortgaged, orpledged unless necessary for the payment ofclaims, administration expenses, estate taxes, or theproper administration of the estate. 755 Ill.Comp.Stat. 5/19-1.

The personal representative, by leave of thecourt, may obtain a loan and mortgage, or pledgefor a term not to exceed 1 year, for agriculturalcommodities. The proceeds of the loan are personalestate in the hands of the personal representative.755 Ill. Comp. Stat. 5/19-3. 755 Ill. Comp. Stat. 5/19-4 through 755 Ill. Comp. Stat. 5/19-5 outlines theprocedure for the personal representative to obtainpermission from the court to sell, mortgage, orpledge the personal estate, the notice required, andwhat the court can order in connection to the sale,mortgage, or pledging of personal estate.

Except as the will directs, or as otherwise pro-vided by law, a personal representative has theauthority for the preservation and settlement of theestate to continue the decedent’s unincorporatedbusiness during 1 month following the date ofissuance of his or her letters and for such furthertime as the court, from time to time, may authorize.755 Ill. Comp. Stat. 5/19-6.

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A discussion of the personal representative’spower to collect, preserve, and administer the realestate in the decedent’s estate appears later in thischapter under the heading of Transfer ofAssets/Real Estate.

A discussion of the personal representative’spower to collect, preserve, and administer the secu-rities in the decedent’s estate appears later in thischapter under the heading Transfer of Assets—Securities (Corporate Stock).

Prepare the Inventory

The personal representative must file with the courta verified inventory of the real and personal estatewithin 60 days after the issuance of the letters testa-mentary or letters of administration.

If the personal representative learns of addi-tional property, he or she shall file a supplementalinventory within 60 days after it comes to his or herknowledge.

The inventory must describe real estate andimprovements, state the amount of money on hand,and list all of the personal estate. 755 Ill. Comp.Stat. 5/14-1.

Prepare an Appraisal

A personal representative may appraise any goodsor chattels of the estate, or may employ one ormore competent or disinterested appraisers forthe purpose of appraising, and pay a reasonableamount for their services. 755 Ill. Comp.Stat. 5/14-2.

File the Inventory and Appraisal

See the previous discussion on preparing the inven-tory and appraisal. 755 Ill. Comp. Stat. 5/14-3.

DISTRIBUTION OF THE ESTATE AND PAYMENT OF CLAIMS

Distribute Family Allowances (IncludingMaintenance) and/or Exempt Propertyto Surviving Spouse and/or MinorChildren

See the discussion on family allowances containedin Chapter 4 of this supplement.

Attend Hearing on Creditors’ Claimsand Pay Allowed or Approved Claims

755 Ill. Comp. Stat. 5/18-2 states the criteria for theform a creditor should submit. It must be in writ-ing and state sufficient information to notify thepersonal representative of the claim’s nature orother relief sought. The creditor needs to file theclaim with the personal representative or the courtor both. If the claimant files the claim with thecourt, the claimant shall have a copy of the claimmailed or delivered to each personal representativewho has letters, all guardians of wards, and thepersonal representative’s attorney unless this noticehas been waived. The claimant will file proof ofservice of this notice with the court. 755 Ill. Comp.Stat. 5/18-1.

If a claim should not be paid, the personal rep-resentative or any other interested person may filepleadings with the clerk of court within 30 daysafter mailing or delivery of the copy of a claim. 755Ill. Comp. Stat. 5/18-5. Any interested person maydemand a jury trial to try the issue as provided in755 Ill. Comp. Stat. 5/18-6.

The procedure on hearing of claims in Illinoisprovides that a claim may be allowed, set for trial,continued, or dismissed. 755 Ill. Comp. Stat. 5/18-7.

In this section of the statutes, the Illinois legis-lature has created a claim of special interest. It hasenacted a statutory custodial claim. This claim pro-vides any spouse, parent, brother, sister, or child ofa disabled person who dedicates himself or herselfto the care of the disabled person by living with,and personally caring for, him or her for at least 3years shall be entitled to this claim. This claim is inaddition to any other claim the person has for nurs-ing or other care. The claim is based upon thenature and extent of a person’s disability, and at aminimum (but subject to the extent of assets avail-able) shall be

1. 100 percent disability, $100,000.00

2. 75 percent disability, $75,000.00

3. 50 percent disability, $50,000.00

4. 25 percent disability, $25,000.00

755 Ill. Comp. Stat. 5/18-1.1.Another statute provides for what an attorney

or personal representative must do if he or she hasa claim against the estate. That person must file aclaim like any other creditor. The court may

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appoint a special administrator to appear anddefend the estate. 755 Ill. Comp. Stat. 5/18-8.

In general, the personal representative of anestate shall pay from the estate all claims in orderof their classification and, when the estate is insuffi-cient to pay the claims in one class, the claims inthat class shall be paid pro rata. 755 Ill. Comp. Stat. 5/18-13.

The classification of claims is stated in 755 Ill.Comp. Stat. 5/18-10. The order of preference is asfollows:

1. Funeral and burial expenses, expenses ofadministration, and statutory custodial claims

2. The surviving spouse or child’s award

3. Debts due the United States

4. Money due employees of the decedent of notmore than $800.00 for each claimant for serv-ices rendered within 4 months prior to thedecedent’s death and expenses attending thelast illness

5. Money and property received or held in trustby decedent, which cannot be identified ortraced

6. Debts due Illinois, and any county, townships,city, town, village, or school district of Illinois

7. All other claims

The Illinois statutes provide that a personal rep-resentative may allow or disallow claims. Paymentor a written consent by the personal representativeconstitutes allowance of a claim. Also, the personalrepresentative may disallow all or a part of a claim.He or she needs to mail or deliver a notice of disal-lowance to the claimant or claimant’s attorney.More details with regard to this procedure arefound in 755 Ill. Comp. Stat. 5/18-11.

A claim against the decedent’s estate, except foradministration expenses or a surviving spouse’s orchild’s award, is barred if

1. Notice is properly given to the claimant and theclaimant does not file a claim before the datestated in the notice

2. Notice of disallowance is given to the claimantand the claimant does not file a claim with thecourt on or before the date stated in the notice

3. The claimant or his or her address is notknown or reasonably ascertainable by the per-sonal representative, and the claimant does not

file a claim with the personal representative or court on or before the date stated in the published notice

Unless a claim is barred sooner based on oneof the above contingencies, all claims which can bebarred are barred 2 years after the decedent’sdeath. 755 Ill. Comp. Stat. 5/18-12.

Transfer of Assets/Real Estate

Several Illinois statutes cover the administration of real estate, including 755 Ill. Comp. Stat. 5/20-1through 755 Ill. Comp. Stat. 5/20-24. This sectionhighlights some of the laws, but the reader shouldconsult the statutes for more in-depth coverage.

755 Ill. Comp. Stat. 5/20-1 discusses the per-sonal representative’s role in connection with thedecedent’s real estate. A personal representativeshall take possession of the real estate (subject tothe exempt estate of homestead) unless the dece-dent’s will provides otherwise or an heir or legateeuses the real estate as his or her residence (subjectto some exceptions). The personal representativewill have possession during administration of theestate and shall (1) collect rents and earnings of it,(2) keep the buildings and fixtures in tangiblerepair, (3) pay taxes, mortgages, and other liens onit, (4) protect it with insurance (if necessary), (5)employ agents and custodians (if necessary), and(6) make all reasonable expenditures necessary topreserve the real estate. Further, the personal repre-sentative may maintain an action for the possessionof, or to determine the title to, the real estate.However, the personal representative must havereceived his or her letters testamentary or letters ofadministration to initiate an action to determine thetitle to the real estate.

755 Ill. Comp. Stat. 5/20-2 discusses how andunder what circumstances a personal representativemay lease the real estate.

A personal representative may sell or mortgageany real estate when it is necessary for the properadministration of the decedent’s estate. However,the personal representative may not sell or mort-gage any real estate that is specifically bequeathed,or if the decedent’s will directs that it cannot besold or mortgaged unless necessary for the paymentof claims, administration expenses or estate orinheritance taxes, or the proper distribution of theestate. 755 Ill. Comp. Stat. 5/ 20-4.

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755 Ill. Comp. Stat. 5/20-5 through 755 Ill.Comp. Stat. 5/20-14 outline the sale or mortgageprocedure. In particular, the court may appoint up to three disinterested appraisers that willreport to the court the appraisal figure. 755 Ill.Comp. Stat. 5/20-8.

Within 30 days after the court approves areport of sale from the personal representative, thepersonal representative has to execute and deliverto the purchaser a deed conveying the decedent’sinterest. 755 Ill. Comp. Stat. 5/20-10. The personalrepresentative must account for the proceeds ofevery sale or mortgage in the final account. 755 Ill.Comp. Stat. 5/20-12.

If the real estate is not sold during administra-tion, the personal representative shall sign andrecord a notice of probate. The notice shall include(1) decedent’s name, address, and date of death,(2) legal description and street address of realestate, (3) court name and case number, (4) datewhen personal representative was appointed, and(5) personal representative’s name and address.Notice will be recorded in the county where thereal estate is located before the personal represen-tative is discharged. 755 Ill. Comp. Stat. 5/20-24.

Transfer of Assets—Securities(Corporate Stock)

A personal representative has many powers andduties with regard to the collection of, preservationof, and administration of investments. The statuteswhich govern these powers and duties are found in755 Ill. Comp. Stat. 5/21-1 through 755 Ill. Comp.Stat. 5/21-2.15.

755 Ill. Comp. Stat. 5/21-1 provides that inaddition to any investments that a decedent mayauthorize his or her executor to make by terms ofhis or her will, the personal representative may inhis or her discretion invest money of the estate inany one or more of the investments statutorilyallowed:

1. Direct obligations of the United States 755 Ill.Comp. Stat. 5/21-1.01

2. Local public agency obligations 755 Ill. Comp.Stat. 5/21-1.02

3. Savings accounts or certificates of deposit 755Ill. Comp. Stat. 5/21-1.03

4. Savings and loan association withdrawableaccounts or shares 755 Ill. Comp. Stat.5/21-1.04

5. Common trust funds 755 Ill. Comp. Stat. 5/21-1.05

6. Open-end registered investment companies 755Ill. Comp. Stat. 5/21-1.05a

7. Investments authorized by courts or GeneralAssembly 755 Ill. Comp. Stat. 5/21-1.06

8. Mutual Funds 755 Ill. Comp. Stat. 5/21-1.07

THE FINAL ACCOUNT AND CLOSINGTHE ESTATE

File the Final Account and Petition for Settlement and Distribution

The statute governing this section is 755 Ill. Comp.Stat. 5/24-1, which provides for the final account tobe presented to the court by the personal represen-tative within 60 days or 12 months after the lettersexpire. This preparation and presentation of theaccount may be waived if interested parties agreein writing.

Give Notice of the Hearing to InterestedParties

A notice of hearing is given to unpaid creditors andother interested parties. 755 Ill. Comp. Stat.5/24-2.No notice is given to those creditors paid in full orwho have signed waivers to such a notice.

Prepare and File Copies of Federal andState Estate and Income Tax Returnswith the Final Account

See Chapter 14 for the required Illinois tax returns.

Receive Order for Settlement and Decree of Distribution

The court may order settlement of the estate, andthe court may order the representative to distributethe estate to the appropriate persons. On final dis-tribution of the estate, payments made from theprincipal and income must be accounted for in thefinal account. 755 Ill. Comp. Stat. 5/24-3.

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Request Order Discharging PersonalRepresentative

The court issues an order discharging the personalrepresentative upon the presentation of the finalaccount in the absence of fraud, accident, or mistake. 755 Ill. Comp. Stat. 5/24-2.

Cancel Personal Representatives Bond

After the hearing on the final account and the orderis granted discharging the personal representative,the surety on the bond is released. 755 Ill Comp.Stat. 5/12-11.

SPECIAL PROBATE PROCEEDINGS

Special Administration

When a petition is filed with the court alleging wrong-doing on the part of the representative as the respon-dent, the court may appoint a special administrator torepresent the estate. 755 Ill. Comp. Stat. 5/16-1.

The selection of the special administrator maynot be made upon the recommendation of anyinterested persons adverse to the person repre-sented by the special administrator. 755 Ill. Comp.Stat. 5/27-5.

A special administrator may be appointed forthe deceased if there is an action that survives thedecedent’s death and if no letters of administrationhave been filed. 735 Ill. Comp. Stat. 5/2-1008.

Administration of Omitted Property

Illinois procedure is consistent with the discussionin the main text. 755 Ill. Comp. Stat. 5/24-9.

LIMITATIONS ON AND LIABILITY OFTHE PERSONAL REPRESENTATIVE

Illinois procedure is consistent with the discussionin the main text. 755 Ill. Comp. Stat. 5/24-18.

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CHAPTER 14

INFORMAL PROBATE ADMINISTRATION

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THE CHOICE OF FORMAL ORINFORMAL PROBATE

Informal probate in Illinois is governed by thestatutes that make up the “IndependentAdministration of Decedent’s Estates Article.” This isfound in 755 Ill. Comp. Stat. 5/28-1 through 755 Ill.Comp. Stat. 5/28-12. The article permits a personalrepresentative to administer the estate without courtorder or filings except as required by this Article orrequested by any interested person under thisArticle. 755 Ill. Comp. Stat. 5/28-1.

Independent administration may be allowedunless the will expressly forbids it or supervisedadministration is required. Supervised administrationwould be required if an interested person objects tothe grant of independent administration. However,the court could still grant independent administrationsubject to the objection if (1) the will directs inde-pendent administration, then the court may directsupervised administration if there is good cause torequire it, or (2) the objector is a creditor or a lega-tee other than a residuary legatee, supervised admin-istration will be required only if the court finds itnecessary to protect the objector’s interest.

If there is an interested person who is a minoror disabled person, the court may require super-vised administration. 755 Ill. Comp. Stat. 5/28-2.

APPLICATION FOR INFORMALPROBATE AND APPOINTMENT OF PERSONAL REPRESENTATIVE

The court may grant independent administrationwhen a petition to administer an estate does not

request supervised administration and is filed undercertain circumstances enumerated in the statute.Further, the court may grant independent adminis-tration if the personal representative petitions thecourt at any time during supervised administrationfor independent administration and gives notice tothe interested persons as the court directs. 755 Ill.Comp. Stat. 5/28-2.

Notice Requirements

When independent administration is granted, theindependent representative shall include with eachnotice mailed to heirs or legatees an explanation oftheir rights under this article and the form of thepetition, which may be used to terminate independ-ent administration. Each order granting independentadministration and letters testamentary or letters ofadministration shall state that the personal represen-tative is appointed as independent executor orindependent administrator, depending on the situa-tion. The independent representative shall file proofof mailing with the clerk of court. 755 Ill. Comp.Stat. 5/28-2.

Proper notice is given if the information is mailedto an interested person at his or her last addressknown to the sender. 755 Ill. Comp. Stat. 5/28-12.

DUTIES AND POWERS OF THEPERSONAL REPRESENTATIVE IN INFORMAL PROBATE

Illinois statute 755 Ill. Comp. Stat. 5/28-8 governsthe personal representative’s administrative powers.This person must act reasonably for the best interests

of the estate. The independent representative hasthe powers granted to him or her in the will andthe following statutory powers:

• To lease or sell for cash or credit, mortgage, orpledge the personal estate of the decedent andto distribute any personal estate

• To borrow money with or without security

• To mortgage or pledge agricultural commodities

• To continue the decedent’s unincorporatedbusiness

• To settle, compound, or compromise any claimof decedent in any property and to settle andpay all claims against the estate

• To perform any contract of the decedent

• To employ agents, accountants, and counsel,including legal and investment counsel, to dele-gate to them the performance of any act ofadministration and to pay them reasonablecompensation

• To hold stocks, bonds, and other personalproperty in the name of a nominee

• To take possession, administer, and grant pos-session of the decedent’s real estate, to paytaxes on it, to lease it, and to sell or mortgageit subject to exceptions specified in this section

• To retain property properly acquired and toinvest money of the estate as specified in thissection

755 Ill. Comp. Stat. 5/28-8.

Payment of Creditors’ Claims

As previously mentioned, the personal representa-tive has the power to pay all claims against theestate. 755 Ill. Comp. Stat. 5/28-8.

Inventory Property

The personal representative must prepare an inventory. A copy of the inventory must be mailedor delivered to each interested person within 30 days prior to filing the verified report. Theinventory need not be filed with the court. 755 Ill.Comp. Stat. 5/28-6.

Within 90 days after issuance of letters ofadministration, the independent administrator shallprovide to the surety on the bond, by certified mail, a copy of the inventory of the real and personal

estate which has come to his or her knowledge.755 Ill. Comp. Stat. 5/28-6.

Hold and Manage the Estate

Other than the rules previously discussed in thissection, other duties that the personal representa-tive has include the provision in 755 Ill. Comp. Stat.5/28-7 which governs spouse and child awards. Anindependent representative may pay the allowedspouse or child’s award. What amount and thenotice required to be given are further discussedwithin this statute.

755 Ill. Comp. Stat. 5/28-10 governs the distri-bution procedure for an independent administra-tion. If it appears to the independent representativethat there are sufficient assets to pay all claims, theindependent representative may at any time distrib-ute the estate to the persons entitled thereto. Thestatute contains provision regarding a refundingbond and when that might be required. This statuteshould be consulted for more particular informationon distribution.

Final Account and Closing the Estate

755 Ill. Comp. Stat. 5/28-11 outlines the provi-sions for closing the estate. An independent rep-resentative is accountable to all interested personsfor his or her administration and distribution ofthe estate but need not present an account to thecourt unless an interested person requests courtaccounting.

The independent representative asking for discharge shall mail or deliver to all interested persons an accounting and shall file with the courta verified report, essentially stating the following:

1. In a testate estate, that notice has been giventhat a will is admitted or denied admission andthat letters testamentary have been issued. See755 Ill. Comp. Stat. 5/6-10.

2. In an intestate estate, that notice has beengiven that letters of administration have beenissued. See 755 Ill. Comp. Stat. 5/9-5.

3. That the notice with regard to creditors’ claimshas been published, that reasonable care wasused to determine the decedent’s creditors, andthat all known creditors have been givennotice. 755 Ill. Comp. Stat. 5/18-3

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4. That copies of an inventory and an accountinghave been mailed or delivered. 755 Ill. Comp.Stat. 5/18-3

5. That each claim filed has been allowed, disal-lowed, compromised, dismissed, or is barredand that all claims allowed have been paid infull, or if the estate could not pay the fullamount that the claims have been paid accord-ing to their respective priorities.

6. That all death taxes have been determined andpaid or otherwise provided for and that theestate is not subject to death taxes.

7. That all administration expenses and other lia-bilities have been paid and that administrationhas been completed or, to the extent not com-pleted, has been provided for as specified inthe report.

8. That the remaining assets of the estate havebeen distributed to the persons entitled thereto.

9. That the independent representative and attorney’s fees have been approved by interestedpersons and paid.

10. The name and address of each person entitledto notice of the filing of the report.

Notice of the report shall be given to all inter-ested persons except (1) creditors whose writtenapprovals are filed with the report or whose claimshave been paid, (2) in general, heirs and legateeswhose signed receipts for payment or distributionin full are filed with the report, and (3) whenever atrustee of a trust is an interested person, beneficiar-ies of the trust by reason of the beneficiaries’ interestin the trust.

If no person needs to be given notice, thecourt shall enter an order discharging the independ-ent representative and declaring the estate closed. If notice must be given, not more than 14 days afterthe filing of the report, the independent represen-tative shall mail a copy of the report. Publishednotice may be done under certain circumstances. If there is no objection to the report within 42 daysafter filing it, the independent representative will bedischarged and the estate closed.

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CHAPTER 15

TAX CONSIDERATIONS IN THE

ADMINISTRATION OF ESTATES

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INTRODUCTION TO TAX CONCERNS

General Tax Considerations

Chapter 35 of the Illinois Compiled Statutes governsrevenue and taxation. In particular, Act 5 is the“Illinois Income Tax Act” contained in 35 Ill. Comp.Stat. 5/101 through 35 Ill. Comp. Stat. 5/1701, and Act 405 is the “Illinois Estate and Generation-SkippingTransfer Act” found in 35 Ill. Comp. Stat.405/1through 35 Ill. Comp. Stat. 405/18. From 2006through 2010, Illinois limits the amount of estateexempt from death taxes to $2,000,000. This amountis less than the federal government’s exempt amount.However, this provision will expire at the end of2010 unless further legislative action is taken. After2010 the exempt amount will decrease to $1,000,000.In Illinois, as in many other states, this death tax isunder considerable debate and several bills havebeen introduced to repeal the death tax altogether. Aparalegal working in the estate planning field shouldmonitor legislative action regularly to remain current.

Creation of Trusts

Illinois has enacted the Charitable Trust Tax LawConformance Act found in 760 Ill. Comp.Stat.60/0.01 through 760 Ill. Comp. Stat. 60/2.

Generation-Skipping Transfers and Their Tax Consequences

Illinois has enacted Act 405, “The Illinois Estate and Generation-Skipping Transfer Tax Act.” This is found in 35 Ill. Comp. Stat. 405/1 through 35 Ill.

Comp. Stat. 405/18. The act defines Illinois generation-skipping transfer tax as the tax due toIllinois with respect to a taxable transfer that givesrise to a federal generation skipping transfer tax. 35 Ill. Comp. Stat. 405/2.

An Illinois generation-skipping transfer tax isimposed on every taxable transfer resulting in federalgeneration-skipping transfer tax involving transferredproperty having a situs within Illinois. The amount ofthe Illinois generation-skipping transfer tax shall bethe maximum state tax credit allowable with respectto the taxable transfer, reduced by the lesser of

1. The amount of the state tax credit paid to anyother state or states.

2. The amount determined by multiplying themaximum state tax credit allowable withrespect to the taxable transfer by the percent-age, which the gross value of the transferredproperty not having a situs in Illinois bears tothe gross value of the total transferred property.

35 Ill. Comp. Stat. 405/4.35 Ill. Comp. Stat. 405/6 discusses returns and

payments for the Illinois generation-skipping trans-fer tax.

TAX RETURNS

Decedent’s Final Income Tax Returns,Federal and State

State Individual Income Tax Return

A tax measured by net income is imposed on everyindividual, corporation, trust, and estate for each

taxable year. A further discussion on the income taximposed is found in 35 Ill. Comp. Stat.5/201. If anindividual is deceased, any income tax returnrequired of the individual will be made by his orher executor, administrator, or other person chargedwith the decedent’s property. 35 Ill. Comp. Stat.5/502(b)(1).

Extensions for Federal and State Returns

35 Ill. Comp. Stat. 5/505(b) and 35 Ill. Comp. Stat.5/505(c) govern extensions for filing federal andstate returns.

Fiduciary’s Income Tax Returns, Federaland State

State Fiduciary Income Tax Return

The Illinois income tax is imposed on every trustand estate earning income in Illinois. The Illinoisincome tax is heavily based on the federal incometax code. To comply with the tax requirements fortrusts and estates, file Form IL-1041, “IllinoisFiduciary Income and Replacement Tax Return,”annually by the 15th day of the 4th month follow-ing the close of the tax year. 35 Ill. Comp. Stat.5/505(a)(2).

Returns required of an estate or trust shall bemade by the fiduciary. 35 Ill. Comp. Stat. 5/502(b)(3).

Decedent’s Gift Tax Returns, Federaland State

State Gift Tax Return

As the main textbook indicates, Illinois does nothave a state gift tax.

Decedent’s Estate Tax Returns, Federaland State

State Estate Tax Return

Illinois has enacted Act 405, “The Illinois Estate andGeneration-Skipping Transfer Tax Act.” This isfound in 35 Ill. Comp. Stat. 405/1 through 35 Ill.Comp. Stat. 405/18. Illinois defines its Illinois estatetax as the tax due to this state with respect to a

taxable transfer that gives rise to a federal estate taxand is considered a “pick-up tax.” 35 Ill. Comp.Stat. 405/2.

An Illinois estate tax is imposed on every tax-able transfer involving transferred property having atax situs within Illinois. The amount of the Illinoisestate tax shall be the maximum state tax creditallowable with respect to the taxable transferreduced by the lesser of

1. The amount of the state tax credit paid to anyother state or states.

2. The amount determined by multiplying themaximum state tax credit allowable withrespect to the taxable transfer by the percent-age, which the gross value of the transferredproperty not having a situs in Illinois bears tothe gross value of the total transferred property.35 Ill. Comp. Stat. 405/3.

The Illinois estate tax shall be paid to the treasurer of the county in which the decedent wasa resident on the date of the decedent’s death if thedecedent was not a resident of Illinois on the dateof death, the county in which the greater part, bygross value, of the transferred property with a taxsitus in Illinois is located 35 Ill. Comp. Stat.405/6(e)(1).

In Illinois, the attorney general’s office adminis-ters the estate tax. It is imposed on the fair marketvalue of the decedent’s estate as of the decedent’sdate of death. The estate does not include anyexpenses or deductions such as funeral bills, costs of administration, or personal debts. Further, anyamount given to a spouse or charity is exempt. TheIllinois estate tax is like the federal estate tax and is aprogressive tax. The tax is due 9 months after deathand should be filed on Illinois Estate Tax ReturnForm 700. Check Act 405 for more information.

If a paralegal had additional questions aboutthe Illinois Estate Tax, he or she could contact theIllinois Attorney General’s Office Estate Tax sectionin Springfield, Illinois, at 1-217-524-5095 or Chicago,Illinois, at 1-312-814-2491.

State Inheritance Tax Return

As the main textbook indicates, Illinois does nothave a state inheritance tax.

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CHAPTER 16

ETHICAL PRINCIPLES RELEVANT

TO PRACTICING LEGAL ASSISTANTS

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The discussion in the text is applicable to practice inIllinois, and the licensing and practice of attorneysin Illinois is governed by the rule of the SupremeCourt of Illinois, Article VII, found at the Illinois BarAssociation Web site, http://www.illinoisbar.org/

The Illinois paralegal is bound by the ethicalrules or code of a professional organization of which

he or she may be a member, including national,local, and statewide associations. The IllinoisParalegal Association, an organization made up ofmany local paralegal associations in Illinois, hasadopted an ethical code. The ethics code may befound at the IPA Web site, http://www.ipaonline.org/