We are experienced litigators in the areas of disputes, controversies and contests involving wills, trusts, estates, guardianships and related matters. Those cases may have to do with breach of fiduciary duties, over-reaching, financial manipulation, fraud, duress, tortious interference with expectancies and matters related thereto.
We have been handling estate settlement matters for decades, including independent administration, supervised administration, probate and non-probate, including representation of Executors, Administrators, beneficiaries, and others, the preparation and filing of estate settlement documents, including admitting wills to probate, obtaining Letters of Office, having First and Final Account and Reports approved by the Court and matters related thereto.
We have experience and expertise in the areas of routine and non-routine guardianships, including objections to guardianships of the person, objection to guardianships of the estate, removal of guardians for various reasons, requesting the Court to appoint guardians of the person and estates, representing guardians in regard to annual accounts and matters related thereto.
Power of Attorneys
We have been preparing Power of Attorneys for years, including durable power of attorneys, living wills, healthcare power of attorneys, property power of attorneys, limited power of attorneys and we have experience in regard to removal or revocation of power of attorneys, and appointments of power of attorneys independently or through the Court.
We have been dealing with elder law issues for years, including relating to estates, trusts, guardianships, power of attorneys and other matters. Our experience has necessarily involved issues relating to old-age, senility, alzheimer and physical and mental disabilities.
Belleville Probate Attorneys Provide Representation in Contested Guardianship Proceeding in Randolph County
We were contacted by a client from Randolph County, Illinois for representation. It turned out that our client’s elderly aunt had Alzheimer’s Disease and was not completely aware of the guardianship proceeding that had been instituted against her. It turned out that the aunt’s husband had a girlfriend and was concerned that his wife would divorce him. The husband thought that by hiring a law firm from Columbia, Illinois that he could have his wife declared incompetent and take over as guardian of her person and estate and thereby shield himself from a divorce proceeding, including losing at least fifty (50%) percent of the marital estate to his wife. We immediately took action and objected to the guardianship proceeding that was already pending in the Twentieth Judicial Circuit Court, Randolph County, Illinois. With a guardianship, there is supposed to be a Physician’s Affidavit, which generally includes a recommendation that guardianship is appropriate. In reviewing the Court file at the Courthouse in Chester, Illinois, the Physician’s Affidavit was located. It turned out that a Columbia, Illinois law firm had requested a Physician’s Affidavit from a Belleville physician. The Physician’s Affidavit contained a sworn statement that our client, the elderly wife with Alzheimer’s Disease, had been examined by the physician and determined to be in need of a guardian. We investigated this matter and our due diligence included requesting discovery, including subpoenaing the physician’s records. We learned that the physician had not examined our client prior to completing and submitting the Physician’s Affidavit to the Columbia, Illinois law firm who represented the husband. Apparently, all that occurred regarding the Aexamination@ was that the physician had received a request from a Columbia, Illinois lawyer and a form to be completed. The form was completed based on an example provided by the Columbia, Illinois lawyer and returned to the Columbia, Illinois lawyer. for processing. The husband’s attorney then filed the Physician’s Affidavit with the Court, apparently intending for the Court to rely upon the Physician’s Affidavit in making a determination regarding guardianship. Once we brought to the Court’s attention what was occurring, the Columbia, Illinois law firm eventually agreed to withdraw the Physician’s Affidavit, including because our client had never actually been examined by a physician prior to the affidavit being completed and submitted to the Court. A Guardian Ad Litem was then appointed by the Court. Based on what was occurring, a dissolution of marriage proceeding was filed. A settlement was reached whereby our client received a dissolution of marriage from her husband and her husband was thwarted in his attempts to be appointed the guardian of her person and estate. A close family member of our client was appointed guardian of our client’s person and estate and a successful result was achieved for our client.
Belleville Probate Lawyer Involved in Contested Wills and Trusts Cases in Southern Illinois
Heirs, beneficiaries or other interested persons may have the right to challenge proceedings, including contesting wills and trusts. A thorough examination should be made of all facts and circumstances, including documents that may be involved. Challenges or litigation in regard to Wills and Trusts can be based on a variety of factors, including undue influence, lack mental capacity, duress and interference with an inheritance expectancy, including relating to the competency of the person when the Will or Trust was made. In this type of probate litigation, we usually recommend discovery depositions, including in regard to persons who may have witnessed Wills or Trusts being executed. Sometimes persons that are closest to the maker of the Will or Trust have fiduciary duties, and sometimes those fiduciary duties are violated when those persons prefer themselves in the making of the Will or Trust.
St. Clair County Probate Lawyers Handling Joint Tenancy Accounts, Payable on Death Accounts, Beneficiary Accounts, Life Insurance Policies, Bank Accounts, Retirement Accounts and Employment Accounts
Sometimes contested probate proceedings, which may relate to Wills or Trusts, can also involve actions that were engaged in prior to death, including relating to joint tenancy accounts, payable on death accounts, beneficiary accounts, life insurance policies, bank accounts, retirement accounts and employment accounts. Sometimes there are disputes or controversies regarding heirs and/or beneficiaries, or relatives, or caregivers, friends and acquaintances. A fiduciary relationship is one of trust. That means the person in a fiduciary capacity, is held to a higher standard because of the trust relationship with the person to whom the fiduciary duty is owed. Depending on the circumstances, if a fiduciary relationship exists, then the burden of proof can shift to the fiduciary to show by clear and convincing evidence that there was no fraud involved in financial transactions that benefitted the fiduciary.
Matters Involving Relatives In Contested Will and Contested Trust Cases
In many situations, the fiduciary may be a relative or other person having a close relationship with the person to whom the fiduciary duty is owed. By the date of death, sometimes substantial assets or benefits have already been received by the fiduciary or his or her family. In other instances, the fiduciary can end up being a joint tenant or a payable death beneficiary in regard to an account or other assets that originally belonged to the person to whom the fiduciary duty was owed. This becomes problematical when that fiduciary may also be named the trustee or successor trustee, or executor of the Will. In that situation, the fiduciary, who has been acting as Trustee and/or Executor, usually has a duty to disclose the existence of those assets, as well provide explanation in regard to how those assets came into existence or were retitled. Sometimes it is necessary for the fiduciary who is then acting as Trustee or Executor to step aside, or possibly have a Special Administrator appointed, in regard to issues or conflicts that may exist with respect to the fiduciary acting as Trustee or Executor and the fiduciary being a beneficiary under the Will and/or Trust, or the fiduciary being a joint tenant or payable on death beneficiary as of the date of death of the person to whom the fiduciary duty was owed.