Estate Planning, Probate & Elder Law Attorneys

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» Amending Probate Papers

Sometimes you file papers to open an estate, and then new information appears. Consider a recent case I had -- decedent left four adult children, but the executor (decedent's daughter) was unsure whether decedent had also adopted three other minor children (her wards) prior to her death.

We opened the estate, listing the adult children but not the minors. Later we learned that the minors had indeed been adopted by the decedent. Now what?

To fix this scenario, I prepared and presented to the court a number of documents, including:

1. A Petition to Admit Will with respect to Omitted or Unnotified Person: Under Illinois law, you have to give certain notice to heirs once an estate is opened. This notice must be given within 14 days of the entry of the initial order admitting the Will to probate. Obviously, since we didn't know about these "new" heirs, we didn't do that. We therefore had to file this petition (available as a PDF here), and I must now give notice to the minor children.

2. A Petition to Amend Heirship: The judge previously decided the decedent's heirship based on the executor's affidavit. This affidavit was incorrect, so I also petitioned the court to allow us to file a NEW affidavit of heirship, and to add the three minors as heirs. The previously-entered order declaring heirship was thrown out, and the new order (showing all 7 children) was entered.

It's unlikely that you'll encounter a situation exactly like this one, but most attorneys WILL encounter a situation where a change needs to be made to previously-filed probate documents. The key is to present the judge with all of the relevant facts, so that he or she can help you work through a solution.

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» Conflicts of Interest and Referrals

Probably the two biggest areas for potential conflicts of interest in estate planning are:

1. Where the estate planner represents husband and wife (I discussed this here); and

2. Where the estate planner represents multiple generations of the same family (I discussed this here).

A third area of potential conflict involves referrals. Let's say that I as an attorney receive a fair amount of business from a financial planner with Firm X. Firm X refers me a new client. To whom do I owe a duty: the client, or Firm X?

The answer should be simple -- I owe the duty to the client. I spell this out clearly in my engagement letter to the client; I also talk to the financial planner about it, to make sure he or she understands who I represent.

In most cases, there's absolutely no problem, but a problem can arise if the financial planner wants me to benefit Firm X in some way, particularly if the financial planner wants Firm X to act as a fiduciary. In that case, I discuss the issue with the client, and present the client with the pros and cons of having a corporate fiduciary (and of having Firm X in particular). The client makes the final call, of course.

What happens if Firm X wants me to do a "hard sell," and convince the client that Firm X needs to be the fiduciary. At that point, I tell the client what Firm X is trying to do, and try to make it clear yet again to whom I owe my duty. If that means no more referrals from the financial planner, so be it. This MUST be the approach that an ethical estate planning attorney takes.