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Joel Schoenmeyer’s Answers

8 total

  • I need to file an injunction to stop the distribution of proceeds from late husband's insurance policy. I must do this by Sept 6

    Most attorney will gladly do that for the will. I am contesting the validity of the will. The attorneys claim they cannot do that with the insurance policy. I am claiming that my husband was not in sound mind when he wrote the will and he was n...

    Joel’s Answer

    It's difficult to contest a beneficiary designation in an insurance policy because the policy is not a probate asset. As a result, the probate court wouldn't seem to be able to rule on the validity of the designation in the same way that it can rule on the validity of a Will.

    That being said, there may be ways in which you can obtain relief:

    1. Raise a stink with the insurance company. I once had a case where my client's father was alleged to have signed a beneficiary designation giving his life insurance proceeds to his siblings. Since the father was in a mental hospital in his later years, we asked the insurance company how the designation could be valid. (We also raised questions with the company about whether the father's signature on the designation was a forgery.) As a result of our inquiries, the company got spooked, and decided on its own that it wouldn't honor the designation. The insurance proceeds then became payable to the estate, and they were eventually paid out to my client.

    2. If the above doesn't work, consider filing a citation action against the insurance company. This is an action taken under Article XVI of the Illinois Probate Act, used in situations where someone connected with an estate believes that a third party (the respondent) is holding property belonging to the estate. The first stage of the citation process (citation to discover information) would allow you and your attorney to depose the insurance company, to find out information regarding the beneficiary designation. Was it witnessed? By whom? On what date? This might allow you to show lack of capacity by your husband at the time the designation was executed (if you have evidence to back up such a claim). In the second stage of the citation process (citation to recover property), the probate judge would rule on who owns the property.

    There's no guarantee that either of the above tactics will succeed, but they could at least help you get around the fact that probate courts typically won't rule on the validity of a life insurance beneficiary designation.

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  • When making a will

    When you make a will out and have the will witness by 3 people do the 3 people who are the witnesses need to be present all together at the same time or can you have them witness it at separate times ?

    Joel’s Answer

    The witnesses all need to be present at the same time. Basically, everyone (the person making the Will, also known as the "testator," and the witnesses) needs to watch each other sign.

    Note that Illinois law requires only two (not three) "credible witnesses." Some folks do like to get three witnesses, just to be on the safe side.

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  • Administator of Estate

    What is rate of money Administator is entitled to

    Joel’s Answer

    Unfortunately, there is no set rate for administrators and executors. The Illinois Probate Act speaks of "reasonable" compensation, which isn't particularly helpful. In the attached link (to a post from my blog), I address some ways in which you might compute reasonable compensation.

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  • Small estate affidavit

    does a lawyer have to fill out a small estate affidavit or can the power of attorney fill it out? The person that the small estate affidavit is for is recently deceased

    Joel’s Answer

    Anyone with knowledge of the decedent's situation can fill out a small estate affidavit. That being said, the statutory form can be a little confusing, so it may be a good idea to run its contents by an attorney.

    The keys to completing a small estate affidavit are:

    1. Make sure that the value of all of the decedent's probate property (that is, property he or she owned in his or her own name at death) is under $100,000. If it's over, then a formal probate will be needed.

    2. Make sure that all probate property is listed on the affidavit.

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  • IL state estate planning law IL state inheritance law

    what is inheritance based upon, and when does it begin?

    Joel’s Answer

    In Illinois, inheritance is based on one of two things:

    1. If the person who died had a valid Will, then inheritance is based on the named legatees in the Will (legatees being the people or entities to whom property is given).

    2. If the person who died didn't have a valid Will, then inheritance is based on family relationships. Essentially, the property of the person who died will pass to his or her heirs (closest relatives). This obviously varies by situation. For example, if you die an Illinois resident without a Will and are survived by a wife and two kids, then your heirs are your wife (1/2 share) and kids (1/4 share each).

    Inheritance rights begin upon the death of the person in question.

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  • IL state estate and probate laws, timeline for paying creditors of decedent

    Is there a certain amount of time to lapse for a deceased person's personal bills to be paid in Cook County, Illinois?

    Joel’s Answer

    The answer to this question depends on whether the deceased person's estate is being probated.

    While there are some downsides to probate, one of the upsides is that it sets a clear timeframe for the payment of a deceased person's debts. Once a probate estate is opened, notice is given to creditors (by mail or by newspaper publication), which starts the "claims" clock ticking for them. Most creditors have six months from the first publication of notice in the newspaper to file their claim against the deceased person's estate; if they fail to file within that timeframe, their claim is barred.

    The issue gets trickier if there is no probate. Did the deceased person own little or no property? Or was all of their property owned in non-probate forms (beneficiary designation, joint tenancy, etc.)? It may be hard for a creditor to reach such property under Illinois law, but there's no affirmative way to bar these types of claims if no probate estate has been opened.

    Finally, I would add that you shouldn't make ANY payments on claims until you talk to an attorney. Claims against a deceased person's estate fall into one of seven classifications in Illinois, with 1st class claims having first priority. You'd never want to be in a position where you paid a 7th class claim, and then someone files a 1st class claim and there isn't enough money to pay it!

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  • Contesting real estate purchase in IL

    In Feb, 2006 my dad's asked to meet with his 10 kids for his 80th b-day gift. In the festivity he emotionally announced his will while he was sound and alive. My dad indicated that he left the property to all of his 10 children and for it to be ...

    Joel’s Answer

    First of all, the videotape of dad is not a valid Will -- Illinois law requires that a Will be in writing. It is, of course, evidence of his intent at the time.

    From a legal perspective, the best time to bring up this issue is now, while your parents are still alive. Of course, from a family/emotional perspective, it's not fun to deal with this now. In seeking to set aside the sale, you are really saying that your father was incapable to entering into the sales agreement, or that your sister exercised undue influence on him. The more evidence you have to support either or both of these arguments, the better. (And some of the facts you present -- of your parents being dependent on your sister -- certainly support the argument that she "forced" the sale.)

    How do you address this? The best way to proceed might be via a guardianship, although you don't mention if your father is really disabled. Have you spoken to him about the situation? Have you spoken with your sister? That's the first step, I think.

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  • IL probate law, administration of father's estate, home facing possible foreclosure

    Hello! My father passed away last year, and assets are set to be released from his estate shortly. (Nothing in the hundreds of thousands or anything)We had his home on the market most of this year,and it has not sold.It is now pending foreclosure ...

    Joel’s Answer

    I think your concern is a valid one. You should understand that you and the other beneficiaries are under no legal obligation to contribute money to bring the house payments current. But that means the house will essentially belong to the lender.

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