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  PART 15.00  Probate


15.005 PROGRESS CALLS

In the administration of all guardianships and estates opened in the probate division, including decedent's estates which are independently administered, the case shall be placed upon the progress call of the presiding judge of the probate division to be calendared at the next progress call immediately after the 12th month following the issuance of letters of office. At the progress call, the guardian or personal representative, in person or through counsel, shall appear and report on the progress of the case.

The case shall be removed from the progress call if the guardianship or estate is terminated prior to the progress call. The case may be removed from the progress call if the personal representative files a final report and account together with a petition to close the estate, or files in writing and before the date of the progress call a report and request for extension of time to submit a final report on the appropriate form provided in Appendix Q-1, Appendix Q-2 and Appendix Q-3 herein. 

At the hearing on the progress call, or upon the submission of the report and request for extension of time to submit a final report, or upon the failure of the guardian or personal representative to appear, in person or through counsel, at the progress call or submit such a report and request, then the Court shall determine whether to administratively terminate the estate, to initiate contempt proceedings, or to order any other disposition of the case.

All filings required by this rule shall be provided to all parties of record, including guardians ad litem, who have not waived notice. Failure to comply with this rule may result in the imposition of any of the orders set forth above.

(Adopted 9/13/2000)

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15.01 ATTORNEYS IN FACT AND REPRESENTATIVES OF FOREIGN COUNTRIES

a.  The distributive share of a citizen and resident of a foreign country may be paid to the official representative of such foreign county (hereinafter referred to as "representative"), attorney-in-fact, or assignee of such distributee (provided said official representative, attorney-in-fact, or assignees is a bona fide resident of the State of Illinois) in the following manner:

  1. The representative or attorney-in-fact or assignee shall present satisfactory evidence to the court that the principal is in fact the person, entitled to receive such distributive share, and that such representative or attorney-in-fact or assignee had been duly authorized by treaty or power of attorney or assignment to receive said distributive share.
  2. Each power of attorney or assignment shall be signed by the distributee and properly authenticated, and acknowledged before the American Consul of the jurisdiction in which the foreign distributee resides, unless the court shall be satisfied with the other evidence relating to the genuineness of the validity of the power of attorney or assignment.
  3. The representative or attorney-in-fact or assignee shall present a petition for leave to receive the distribution in a form prescribed by the court. When such petition is allowed by the court, an order in conformity therewith shall be entered.
  4. Unless excused by the court, such representative or attorney-in-fact or assignee shall furnish suitable bond with sureties in an amount to be fixed by the court in substantially the form set forth in Appendix L. The bond shall be conditioned upon the payment and delivery of the distributive share to the distributee.
  5. The representative or attorney-in-fact shall acknowledge to, in writing, receipt of the distributive share received from the legal representative, and shall certify on said receipt that authority to receive the distributive share as described in (i) has not been revoked. The said receipt and certificate shall be filed with the legal representative's vouchers.
  6. The representative or attorney-in-fact within ninety (90) days after entry of the order of distribution (or any extension thereof, allowed by the court during said ninety (90) day period) shall present to the court the report of compliance together with the receipt or voucher of the distributee. In the event of a failure, refusal, or inability of the representative or attorney-in-fact to pay and deliver the distributive share to the foreign distributee within said ninety (90) days (or any extension thereof, granted by the court during the said ninety (90) day period) the distributive share shall be deposited with the county treasurer of the county subject to the further order of the court. Presentation of voucher or receipt of the county treasurer, evidencing the deposit of said distributive share, shall be produced and filed in the court by the representative or attorney-in-fact or assignee, who whereupon shall then be discharged from further duty.

b.  When an attorney-in-fact, authorized to receive the distributive share of the distributee, is not the attorney for the estate and is not an attorney, the attorney (affiant) representing the attorney-in-fact, shall file an affidavit, stating that the affiant will properly supervise the distribution of funds in the hands of the attorney-in-fact.

(Adopted 10/1991) 

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15.02 APPRAISAL OF REAL AND CHATTEL PROPERTY

No real or personal property shall be sold or transferred by order of court at public or private sale during the claim period, unless prior thereto:

  1. the same shall have been appraised by a disinterested appraiser or appraisers, appointed or approved by the court; or
  2. appraisal is excused by the court.

(Adopted 10/1991)

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15.03 SETTLEMENT OF MINOR'S OR DISABLED PERSON'S PERSONAL INJURY, WRONGFUL DEATH CASE, AND ACTIOSN UNDER THE SURVIVAL STATUTE WHERE NO LAWSUIT IS PENDING

a.  Each petition for leave to settle a cause of action for personal injuries sustained by a minor or disabled person, a wrongful death action, or an action under the Survival Statute (755 ILCS 5/27-6) shall be executed by the legal representative of the estate of the minor, or disabled person or decedent and shall recite:

  1. A description of the occurrence giving rise to the cause of action.
  2. The name and address of the person or entity against whom the cause of action was accrued.
  3. The name and address of the liability insurance carrier, if any, affording coverage to the person or entity against whom the cause of action has accrued and the monetary limits of the liability insurance policy issued by said insurance carrier in effect at the time of the occurrence.
  4. In minor's or disabled person's personal injury cases and causes of action under the Survival Statute, a description of the injuries sustained by the minor or disabled person or the decedent and a list of hospital and medical expenses incurred on behalf of said minor or disabled person or the decedent as result of the occurrence. In minor's or disabled person's personal injury cases, a current medical certificate or letter executed by the attending physician dated within thirty (30) days stating the nature and extent of the injuries sustained by the minor or disabled person and the doctor's prognosis for the minor or disabled person and estimated cost of future care.
  5. In wrongful death cases, the age, occupation, and annual earnings of the decedent at the time of death; the names, addresses, birth dates and relationship of each of the next of kin of the decedent; and a statement of the opinion of the legal representative of the respective percentage of dependency of the next of kin.
  6. The terms of any settlement offer and in a statement by the attorney for the legal representative, or by the legal representative if not represented by an attorney, an opinion with respect to the fairness of the settlement offer and recommendations as to whether said offer should be approved.

b.  Unless waived by the court for good cause shown the court shall appoint an attorney as guardian ad litem to:

  1. investigate the merits of the proposed settlement; and
  2. report findings and recommendations in writing before approval of the proposed settlement.

An attorney appointed as guardian ad litem who does not recommend the approval of the proposed settlement shall not represent as a private attorney the legal representative but shall, unless otherwise ordered by the court, continue as such guardian ad litem with reference to any revised offer of settlement. The court shall fix an appropriate fee for the guardian ad litem to be taxed as cost in the case.

c.  In minor's or disabled person's injury cases, the attorney representing the legal representative of the minor or disabled person in a sworn petition shall include:

  1. Terms of employment, with copy of all contracts or correspondence verifying same.
  2. Itemized statement of services rendered in conformity with Rule 15.10.

d.  In wrongful death actions, the court shall appoint a guardian ad litem for all minors and disabled persons who are decedent's next of kin. In wrongful death actions, the court entering the order approving the proposed settlement shall provide for allocation of the net proceeds of the settlement amount among the next of kin according to their respective percentage of dependency of the decedent. The court may, in its discretion, hold a hearing for the purpose of determining the respective percentage of dependency by each of the next of kin.

e.  The order entered approving settlement shall provide for the distribution of the settlement funds and the filing of vouchers which evidence receipt of any portion of the fund with the court within a time prescribed by the court.

f.  When any settlement funds are to be received by a parent or legal representative on behalf of a minor or disabled person, such funds shall be required to be deposited in an account in a financial institution approved by the court for the benefit of the minor or disabled person, and shall not be withdrawn without approval by court order. The court shall continue the case to a specific date for the purpose of having a voucher from the financial institution filed which acknowledges receipt of the funds and a copy of the order of the court approving settlement.

g.  The order entered approving settlement shall provide for the appointment of a guardian for the minor's or disabled person's estate and shall require the appointed guardian to file a bond pending proper deposit of the minor's or disabled person's funds in the financial institution approved by the court. Upon the filing of the voucher from the financial institution acknowledging receipt of the funds and a copy of the order approving settlement, the bond may be canceled.

The requirement of a bond to be filed by the guardian of the minor's or disabled person's estate may be waived when the court finds it is the best interest of the minor's or disabled person's estate. In such instances, the attorney representing the interest of the minor or disabled person shall have personal responsibility for depositing the funds in the approved financial institution in accordance with the requirements of paragraph (f) above.

h.  Where a lawsuit is pending, the court may, in its discretion, waive the requirement of filing a petition in accordance with Rule 15.03.

(Adopted 10/1991) 

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15.04 GUARDIAN AD LITEM

a.  Any attorney licensed in the State of Illinois may apply for probate court assignments as a guardian ad litem and/or appointed counsel for minors and/or disabled adults. The hourly rate for compensation of services as guardian ad litem or appointed counsel shall be as per local order (General Order 3.09), but in cases involving indigents the services are to be provided pro bono.  Any attorney seeking probate court appointments must complete and submit an Application for Probate Court Appointments on the form provided in Appendix X herein. Completed forms shall be submitted to the presiding probate court judge for approval. Applicants will be notified by the presiding probate court judge concerning whether their applications have been approved. A list of approved appointees will be prepared and maintained by the presiding probate court judge and appointments will be made to all approved attorneys within the areas in which they have been approved.

b.  Once appointed, the guardian ad litem shall remain a party to the proceedings and shall receive notice of all further proceedings concerning the ward.

c.  In the event that a guardian ad litem is no longer able to serve, a successor guardian ad litem shall be appointed by the court prior to any further proceedings concerning the ward.

(Adopted 10/1991; Revised 4/30/2009)

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15.05 TEMPORARY GUARDIAN

Prior to the appointment of a guardian for a minor or disabled person, or, pending appeal in relation to the appointment, the court may appoint a temporary guardian upon a showing of a necessity therefor for the welfare and protection of the person or estate of the minor or disabled. A hearing for the appointment of a temporary guardian shall be scheduled by the presiding probate judge or if unavailable the chief judge. A guardian ad litem shall be appointed to review the facts and circumstances giving rise to the petition for temporary guardian and, where possible, to interview the respondent prior to the court hearing. If the petition seeks the appointment of a temporary guardian for the alleged disabled person, competent medical evidence shall be presented to the court. Notice and summons may, in the court's discretion, be waived, however a certified copy of the order appointing the temporary guardian shall be served upon a ward over the age of twelve (12) years within seven (7) days. Notice of the appointment of the temporary guardian also shall be given, within seven (7) days, by certified mail, to all persons entitled to receive notice under the Probate Act secs. 11-10.1 or 11a-10(f).

(Adopted 10/1991) 

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15.06 SALE OF WARD'S PROPERTY

Notice of a Petition for Sale of a ward's personal or real property shall be given to the ward and to the guardian ad litem. If the court or guardian ad litem deems it necessary, the guardian ad litem shall personally interview the ward with regard to the proposed sale. A report of the guardian ad litem's recommendation regarding the proposed sale shall be made to the court in person or in writing. 

(Adopted 10/1991) 

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15.07 PROOF OF DISABILITY

A certified social worker, nurse, psychologist, physician, or other individual experienced in the evaluation and treatment of disabled adults shall present testimony as to the nature and extent of the respondent's disability, unless such testimony is waived by the guardian ad litem and excused by the court.

(Adopted 10/1991) 

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15.08 TERMINATION OF SMALL ESTATES OF MINORS OR DISABLED PERSONS  

When the value of any minor's or disabled person's estate which is being administered in the court, is or becomes less than five-thousand ($5,000.00) dollars, and no part of the estate consists of real estate or a pending cause of action for personal injuries, a petition may be filed requesting the distribution of the estate without further administration. In the case of a disabled person, application shall be made by the spouse, or if there is no spouse, by a guardian of the person or by a relative, having the responsibility of the support of the disabled person. In the case of a minor, application shall be made by the guardian or by a parent or a person, standing in loco parentis to the minor. If it appears that there is no unpaid creditors, and that it is to the best interest of the estate and the minor or disabled person, the court may order the guardian to file a final account and make distribution, as the court directs, and upon completion of these duties, discharge the guardian.

(Adopted 10/1991) 

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15.09 ACCOUNTS

a.  Notice of the hearing on a final account of an executor or administration or on a current account that is intended to be binding pursuant to the Section 24-2 of the Probate Act shall be given to the persons, described in the Section 24-2 of the Probate Act, as follows:

  1. Such notice shall be in writing, accompanied by a copy of the account, except where notice is to be given by publication.
  2. The notice shall contain the time, place, and nature of the hearing and substantially the following sentence: "If the account is approved by the court after the hearing, in the absence of fraud, accident, or mistake, the account as approved is binding upon all persons to whom this notice is given".
  3. The notice shall be given at least ten (10) days prior to the hearing in the manner, provided by Supreme Court Rules, except when notice is by publication as herein provided, and except whenever the person resides outside the continental limits of the United States, the notice shall be by airmail at least twenty (20) days prior to the date of the hearing.
  4. Whenever the name or place of residence of any such person is unknown or upon due diligence cannot be ascertained, an affidavit to that effect shall be filed with the clerk of the court having jurisdiction of the probate or guardianship estate by said executor or administrator. Notice shall then be given to such person by publication thereof at least once in a newspaper of general circulation, published in the county where the probate or guardianship proceedings have been conducted, at least twenty (20) days prior to the date of the hearing.
  5. Proof of such notice shall be filed with the clerk of the court having jurisdiction of the probate or guardianship estate on or before the date of the hearing.
  6. No notice need be given to any person, from whom a receipt of payment in full is exhibited to this court, or who enters an appearance in writing and waives notice.
  7. If a person entitled to notice is represented by a representative of a foreign country or an attorney-in-fact or an assignee whose appearance is on file, or guardian ad litem, notice as required for motions shall be sent to such representative, not less than ten (10) days before the date set for hearing.

b.  Notice of the hearing on final account of a guardian or of a current account that is intended to be binding pursuant to the Probate Act shall be given in the same manner as provided in section (a) of this rule to the minor or disabled person to whose estate the account relates, if living; to the guardian ad litem; to each claimant, whose claim has been filed and remains undetermined or unpaid; to the heirs at law or legal representative of a deceased minor or disabled person; and where entitled, to the chief attorney of the Administrator of Veterans Affairs. Such notice shall otherwise be in compliance with Section 24-11 of the Probate Act. If a person entitled to notice other than the minor or disabled person is represented by an attorney whose appearance is on file, notice as required for motions shall be sent to the attorney not less than ten (10) days before the date set for the hearing.

c.  At the time of presenting the final account, the guardian shall establish to the court's full satisfaction, the existence of the assets stated; and each account of:

  1. a guardian of the estate shall state the place of residence, physical and mental condition of the minor or disabled person, and
  2. a guardian of the person shall state the place of residence and the fact as to attendance at school or occupation of the minor or disabled person.

d.  Each current account shall disclose to the court the pendency of any claim, suit, or proceeding by or against the estate or representative of the estate and in estates of deceased persons any other reason, which prevents final distribution and termination of the estate.

e.  Where the accounting is to be made to a minor or disabled person, a guardian ad litem shall be appointed to represent such person, unless excused by an order of court.

(Adopted 10/1991) 

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15.10 DISTRIBUTION

If an heir at law of an intestate estate or a devisee or a legatee of a testatee estate shall be a minor or a disabled person or shall die or be adjudicated a disabled person, such fact shall be set forth in the petition requesting authority to make distribution. Where the distributee is a minor or disabled person, a guardian ad litem shall be appointed to represent the distributee, unless excused by order of court.

Except where the distributive share qualifies for distribution under Article XXV of the Probate Act which provides for the distribution of small estates upon affidavit or under 20 ILCS 1705/22, which provides that the Department of Mental Health and Developmental Disabilities may accept funds as a grant, gift or legacy to a recipient residing in any facility of the Department, distribution will be authorized only to the legal representative of such persons.

Final distribution and closing of the estate will not be authorized, unless the legal representative shall report as part of the final account or by separate document, a summary showing that all procedural and administrative duties have been completed.

(Adopted 10/1991) 

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15.11 FINAL ACCOUNTS - COSTS, CLAIMS, AND TAXES

No real or personal property shall be sold or transferred by order of court at public or private sale during the claim period, unless prior thereto:

  1. No final account of any estate shall be approved unless the account states that:
  2. All claims files have been allowed and paid or dismissed, unless there is a finding of insolvency;
  3. The federal estate taxes and Illinois estate taxes, if any, have been paid or provided for; and
  4. Distribution has been or will be made as provided in Rules 15.09 and 15.10.
(Adopted 10/1991)

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15.12 FORM OF ACCOUNTS

a.  Any provision herein with respect to the form of accounts may be waived by the court where:

  1. The personal representative is the only beneficiary,
  2. All interested parties have consented; or
  3. Other good cause is shown.

b.  In each estate in which an account is filed in court:

  1. Each asset listed in a account shall be designated by the number in the inventory, supplemental inventory or prior account in which it first appears, except that this requirement is waived if the account is prepared and controlled by a mechanized accounting system. Distribution of an item or conversion into cash of other disposition need be described only in the first account after completion of the transaction.
  2. When ordered by the court each disbursement stated in a final account or an account intended to be binding under the Probate Act, shall be designated by a number and supported by a voucher, which may be a canceled check or other evidence of payment. Vouchers shall be numbered and arranged in the same order as the disbursements in the account, shall be securely fastened together under a separate cover, and shall be exhibited, but vouchers (other than for distributions) need not be filed with the account, unless objection thereto has been made by any interested party; and
  3. In the event that the account is presented by a bank or trust company, the court shall waive the requirement of the exhibiting of the necessary vouchers for disbursements, other than distributions, upon presentation of a certificate, signed by an official of the bank or trust company stating that the voucher covering the disbursements in the account presented are filed with the bank or trust company.

c.  With respect to an unincorporated business or real estate (a beneficial interest in real estate) in the possession of the representative, the judge may accept a summary accounting of the receipts and disbursements.

d.  An account of administration for each guardian shall be presented within thirty (30) days after the expiration of one year after the issuance of letters, and the guardian shall not be required to file such accounts (after filing the guardian's first account) more often than once every three (3) years, unless otherwise provided by order of court.

e.  An account of administration by each personal representative of a decedent's estate shall be presented within sixty (60) days after the expiration of twelve (12) months after the insurance of letters. The personal representative shall not be required to file an account after filing the first account more often than once every three (3) years, unless otherwise provided by order of court, until the administration is completed.

(Adopted 10/1991) 

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15.13 FINAL SETTLEMENT OF GUARDIAN OF THE ESTATE WITH WARD

a.  The guardian, seeking to be discharged, shall give notice at least ten (10) days prior to the date of such intended application:

  1. To all unpaid claimants;
  2. To the heirs at law of a deceased minor or disabled person or to any known acting administrator or executor of the deceased's estate;
  3. To the minor or disabled person in the event the guardianship is being terminated;
  4. To a guardian ad litem of the minor or disabled person who shall be appointed by the court to review the accounting of the guardian, unless excused by order of the court; and
  5. To any successor guardian.
(Adopted 10/1991)
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15.14 FEES

a.  The personal representative in an estate of a decedent may pay all fees and expenses which the personal representative concludes to be reasonable, including the fees and expenses of the personal representative, without court approval.

b.  If any fee or expense is objected to by the personal representative or by any other interested person having legal standing to object, prior to closing the estate, the objecting person shall file a statement reciting such objection with the clerk of the court and shall serve notice of such filing upon the person claiming such fee or expense within ten (10) days after such filing. A form of such objection is attached hereto as Appendix N Appendix N. Within twenty (20) days after receipt of notice of such objection, the person claiming such fee or expense shall file a petition with the court setting forth the following:

  1. The value of the assets and liabilities in the estate for probate and tax purposes respectively;
  2. The amount of fee desired; and
  3. A summary of the work done and to be done, and a statement of the basis of the charge being made, e.g. a schedule of fees, results achieved, an hourly rate, or other reasons, including those set forth in Supreme Court Rule 1.5 of the Illinois Rules of Professional Conduct. Where the fees are based on an hourly rate, the number of hours spent shall be stated.
  4. Fees shall be allowed in estates of minors or disabled persons upon a petition being presented as in an estate of a deceased person, unless such requirements are waived by the court.
(Adopted 10/1991)

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15.15 ORDER OF DISCHARGE

The order closing an estate and discharging the legal representative shall be in writing and may be prepared in draft form and submitted by the legal representative of the estate or by the representative's attorney. (See Appendix M for format for decedent's estate)

(Adopted 10/1991) 

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15.16 WITHDRAWAL OF MONEY ON DEPOSIT WITH THE COUNTY TREASURER - RECOVERY OF ESCHEATED PROPERTY

Before an order is entered directing the county treasurer to pay money theretofore deposited by order of court, notice shall be served on:

  1. The states' attorney of the county;
  2. The attorney for and the former legal representative; and
  3. Such other persons as the court directs.
(Adopted 10/1991)

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15.17 REOPENING ESTATES TO ADMINISTER NEWLY DISCOVERED ASSETS OR UNSETTLED PORTION OF THE ESTATE

When an estate has been distributed and the legal representative discharged, the estate may be reopened to permit administration of newly discovered assets or of an unsettled portion of the estate and for that purpose only upon the filing of a verified petition therefore. A new bond shall be furnished based on the value of the newly discovered assets or the unsettled portion of the estate, unless waived by the court, in accordance with the Probate Act. When the person seeking to reopen the estate is the former legal representative, such notice of the hearing on the petition shall be given as the court directs. When any other interested person seeks to reopen the estate, notice of the hearing shall be given to the former legal representative and to such other persons as the court directs. Serving of notice of the hearing on the petition shall be made in accordance with rules governing notice of motions, except that if the petition seeks the appointment of a legal representative other than the one who was acting when the estate was closed, service of the notice shall be made not less than twenty (20) days before the hearing on all persons, entitled either to administer or to nominate a person to administer equally with or in preference to the petitioner.

(Adopted 10/1991) 

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