FMS LAW GROUP WINS APPEAL ON BEHALF OF DECEDENT’S SURVIVING SPOUSE WHERE THE DECEDENT’S CHILD FROM A PREVIOUS MARRIAGE CONTESTED THE DECEDENT’S LAST WILL AND TESTAMENT.
On October 24, 2016, after filing of briefs and after oral argument, the Illinois Appellate Court (First District) ruled in favor of our client, the decedent’s surviving spouse, by affirming the Circuit Court of Cook County (Probate Division)’s dismissal of the will contest filed by the decedent’s child from a previous marriage, finding that the the child’s allegations did not give rise to inferences that the decedent either lacked testamentary capacity or was unduly influenced in the making of his will, and finding that the child was collaterally estopped from relying on a presumption of undue influence by a fiduciary. We are pleased to have won this appeal on behalf of the Estate of the decedent’s late wife, Irene Sergo, our original client. Congratulations to Paul Franciszkowicz and Kathryn McCarty for their win on appeal. In re Estate of Sergo, 2015 IL App (1st) 152484-U.
The IRS has announced the annual inflation adjustments to estate and gift tax exclusion amounts for 2016. (Rev. Proc. 2015-53)
- Estates of decedents who die during 2016 have a basic exclusion (“unified credit”) amount of $5.45 million, up from $5.43 million for estates of decedents who died in 2015.
- The annual exclusion for gifts (which allows a donor to give a certain amount annually to each of as many individuals as the donor wishes without incurring gift tax or using up any portion of his or her basic exclusion amount) remains at $14,000 for 2016.
On June 25, 2015, the Illinois Supreme Court ruled in our client’s favor, denying a Motion for Supervisory Order. Had the Motion been granted, the Supreme Court would have overturned two decisions by a trial court judge that were favorable to our client.
The essence of the case turned upon the trial court granting a partial payment of attorney’s fees to our client, an attorney who represented the Executor of the Estate for over fifteen years, and who successfully brought the highly disputed underlying case to Settlement. As the case is finally near closure, our client sought payment for his services out of the Settlement. The Executor, now represented by new counsel, disputed the fees as a whole. The trial court awarded a partial payment for fees and ordered a full hearing on the remainder of the fees requested.
The Executor sought to restrain the partial payment and alleged bias on the part of the Judge. Both motions were denied by the trial Judge, and the Executor appealed to the Supreme Court for a Supervisory Order which, if successful, would have overturned these decisions.
In response, on behalf of our client, FMS Law Group argued that the Motion for Supervisory Order should be denied because the Executor’s attempt to restrain the partial payment was legally inappropriate, and that its attempt to remove the presiding judge was correctly denied at the trial level because the Executor failed to provide valid proof of any bias or prejudice by the trial judge. Finally, FMS Law Group argued that these efforts were all merely attempts to stall and delay the proceedings in the lower court.
The Supreme Court ultimately agreed, denying the Motion for Supervisory Order requested by the Executor. Thus, the case was sent back to the trial court, where FMS Law Group was able to reach a settlement with the Executor, allowing the client to finally get paid for the hard work he performed on the case from 1999 to 2015.
Congratulations to Paul Franciszkowicz and Lisa Hendrix for the successful result!
On July 24, 2015, the Illinois Appellate Court (First District) entered an Order dismissing the appeal for lack of jurisdiction. This appeal arose from a disabled adult guardianship proceeding in the Circuit Court of Cook County, Illinois – Probate Division (the “circuit court”), the Estate of June Kennedy Goss, an alleged disabled person. Our client, one of the alleged disabled person’s daughters, petitioned to have non-relative, third parties appointed as guardian of her mother’s estate and person. On our client’s motion, the circuit court entered a May 13, 2014 order and a subsequent September 10, 2014 order (denying the motion for reconsideration of the alleged disabled person and her other daughter) that disqualified the same law firm from acting as attorneys for both the alleged disabled person (who objected to the guardianship) and her other daughter (who cross-petitioned to have her mother adjudicated disabled and appoint herself as her mother’s guardian), due to a non-waiveable conflict of interest. Appellants (the alleged disabled person and the other daughter), by and through the disqualified law firm, filed their petition for leave to appeal (“PLA”) those orders pursuant to Supreme Court Rule 306(a)(7). After the Appellate Court initially allowed Appellants’ PLA and subsequent briefs were filed, the Appellate Court ultimately dismissed the appeal for lack of jurisdiction, finding that the appeal was not timely filed because Appellants’ motion for reconsideration of the disqualification did not toll the time period for filing a PLA pursuant to Rule 306 of the Illinois Supreme Court Rules. In its Order, the Appellate Court used many of the arguments in our brief as justification for its dismissal. We are very pleased to have had this appeal dismissed on behalf of our client. Congratulations again to Paul Franciszkowicz and Kathryn McCarty on their success in getting the appeal dismissed. In re Estate of June Kennedy Goss, 2015 IL App (1st) 143086-U.
On June 26, 2015, the Illinois Appellate Court (First District) ruled in our client’s favor, affirming the judgment of the Circuit Court of Cook County (Probate Division) that the trust amendment was valid and enforceable as it complied with the terms of the amendment provision of Ross’s trust. Petitioner had appealed the order, claiming that the purported amendment did not satisfy one of the trust’s requirements for a valid amendment (“referring to this instrument”) because the amendment failed to specifically reference the trust’s name and date. The Appellate Court found that the “referring to this instrument” requirement did not require specific reference to the name and date of the trust and that general reference to Ross’s “Revocable Living Trust” was sufficient. Next, Petitioner claimed that the amendment was ambiguous because it lacked internal consistency (inconsistent dates, fonts, numbered paragraphs). The Appellate Court rejected this “form over substance” argument, instead relying on the clear and unambiguous language of the amendment that Ross sought to remove Petitioner as a beneficiary and successor trustee of her trust. Finally, Petitioner claimed that the Circuit Court provided no clarity as to the basis for its ruling and that it is possible the Circuit Court relied on extrinsic evidence in resolving ambiguities. Because Petitioner failed to provide a transcript or bystander’s report to the Appellate Court, the Appellate Court would not speculate as to what errors may have occurred in the Circuit Court and therefore, could not conclude the Circuit Court had erred. In its Order, the Appellate Court used many of the arguments in our brief as justification for the ruling. We are very pleased to have won this appeal on behalf of the beneficiary that Ross intended, by her amendment, to receive her trust property. Congratulations again to Paul Franciszkowicz and Kathryn McCarty for their win on appeal. In re Estate of Ross, 2015 IL App (1st) 142369-U.
We’ve just flipped the calendar page to not only April Fools’ Day but to our anniversary date – this day marks our 2nd year in business! We would like to take this opportunity to express our appreciation for your support and patronage. In looking back from that first day until now, we remember our clients, existing and new, who have placed their confidence in us and in our services. Since that first day, we have added new attorneys and staff to our team, have expanded with a move to a larger office suite, and have plans for future strategic growth. Our growth over the last couple of years is due, in large part, to your trust in us. In the years to come, we plan to continue to provide you with the high level of service you have come to expect from FMS Law Group. Thank you for your part in our success!
On February 2, 2015, the Illinois Appellate Court – First District issued a decision in our client’s favor, holding that the Circuit Court of Cook County – Chancery Division did not err in finding identity of causes of action between a prior Probate action and the instant Chancery action, and therefore, the instant Chancery action was barred by the doctrine of res judicata. Congratulations to Paul Franciszkowicz and Kathryn McCarty for their win on appeal. Gorski v. Sergo, 2015 IL App (1st) 141377-U.
Illinois Appellate Court relies on testimony of Paul Franciszkowicz of FMS Law Group in reversing lower court.
On December 16, 2014, the Illinois Appellate Court – First District, relying in part on the affidavit of an expert witness, “experienced probate practitioner” attorney Paul Franciszkowicz of FMS Law Group, reversed and remanded the trial court’s decision, holding that the Estate could not have been judicially estopped from asserting that Katharina held a 25% interest in the Land Trust at the time of her death and therefore, the trial court improperly granted Gertrude’s Motion to Dismiss when there was a disputed issue of material fact. The Estate of Katharina Kerschner v. Gertrude Kerschner, 2014 IL App (1st) 131732-U.
New Illinois law will address the growing problem of financial exploitation of the disabled or elderly by caregivers.
Senate Bill 1048 (effective January 1, 2015) will add a new provision to the Illinois Probate Act (755 ILCS 5/4a) that provides that if a “transfer instrument” transfers property in excess of $20,000 to a caregiver on or after the transferor’s death and the instrument is challenged, it creates a rebuttable presumption that the transfer is void. A caregiver is defined as anyone who has assumed responsibility for all or a portion of the care of another person who needs assistance with daily living activities. A caregiver would not include a “family member” of the person receiving assistance.
The presumption can be overcome if: (1) the transferee’s share under the transfer instrument is not greater than the share of the transferee was entitled to under the transferor’s testamentary plan in effect before the transferee became a caregiver; or (2) the transfer was not the product of fraud, duress, or undue influence as proved by clear and convincing evidence. If the caregiver attempts and fails to overcome the presumption, the caregiver must bear the cost of the proceedings, including reasonable attorney’s fees.
The statute of limitation for challenging a presumptively void transfer is two years unless the Probate Act requires a shorter period. Senate Bill 1048 applies only to transfer instruments executed after January 1, 2015.
On June 12, 2014, the U.S. Supreme Court in Clark v. Rameker ruled that funds held in inherited IRAs are not “retirement funds” protected in bankruptcy under 11 U.S.C. §522(b)(3)(c). Regular, non-inherited IRAs are exempt from bankruptcy because they are considered retirement funds. Before this decision, the issue of whether inherited IRAs were subject to the same protection was not clear. The decision in this case provides a non-tax driven reason why naming a qualified trust (for the ultimate benefit of the intended beneficiary) as a beneficiary of an IRA may be beneficial versus naming a beneficiary who has or may have creditor issues and would lose those funds in bankruptcy. The qualified trust, as the designated beneficiary, could receive funds from the non-inherited IRA and protect those funds from the trust beneficiary’s creditors.