17.  How does a beneficiary or trustee determine the terms of the trust when the trust language is unclear? 

1. Why would I file a trust and estate law suit?

2. Can a Will be probated when the testator had the original Will and, upon the testator's death, the original Will can not be located?

Yes although the party seeking to admit a Will when the original signed Will can not be located must prevail on a petition to admit the Will - typically a petition to admit a copy of the Will.  The petitioner should retain counsel.

The petitioner has a high burden of proof.  The courts have said where a Will, after its execution, is retained by the testator and cannot be found upon his or her death, it is the well-settled rule that it will be presumed to have been destroyed by him or her.  The presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that burden is on one seeking to probate such a Will to prove that it was unrevoked at the testator's death.  Estate of Babcock, 119 Ill.App.3d 482 (3rd Dist. 1983).

3.  I am an heir and I don't believe that a Will is authentic, in proper form, and/or properly witnessed, or I believe the Will was the product of fraud, forgery, compulsion, or other improper conduct.  How do I challenge the Will's admission to probate?

If aware of the hearing on the petition to admit a Will to probate, you may appear in court and object to the Will's admission to probate.

Within 42 days after the admission of a Will to probate, you may file a petition to require proof of the Will.  At the hearing on the petition, the proponent of the Will must establish the Will.  If the proponent establishes the Will by sufficient competent evidence, the order admitting the Will to probate is confirmed unless there is proof of fraud, forgery, compulsion or other improper conduct, which in the opinion of the court is sufficient to invalidate or destroy the Will.  755 ILCS 5/6-21.

A party should retain counsel to challenge a Will's admission to probate or to require the proof of the Will.

4.  In addition to objecting to the admission of the Will to probate and proceeding on a petition to require proof of the Will, how else can I as an heir challenge the validity of a Will?

Within six (6) months after the admission to probate of a Will, any interested person may file a petition in the proceeding to contest the validity of the Will (a "Will contest").  A contestant or proponent in a Will contest has a right to a jury trial.  You should retain counsel for a Will contest.

5.  I was in the deceased's Will and a third party wrongfully caused the deceased to take me out of the Will.  How much time do I have to sue this third person in tort?   

If you are bringing a tort action against a person for interference with a testamentary expectancy, depending upon the circumstances courts have applied to such a tort action the six-month statute of limitation applicable to will contests.  See Bjork v. O'Meara, 2012 IL App (1st) 111617.

6.  How do I request that an estate be subject to supervised administration rather than independent administration?

An interested party may request supervised administration at any time.  755 ILCS 5/28-4.  Supervised administration allows the court to exercise more control over the executor or administrator.

7.  How can an estate recover property that had belonged to the deceased or proceed on a cause of action that had belonged to the deceased?

An estate, through its executor or administrator, may seek recovery of property that had belonged to the deceased, and is property of the estate, or proceed on a cause of action that had belonged to the deceased either by petitioning a court to issue a citation to recover (755 ILCS 5/16-1, et. seq.) or bringing an independent lawsuit pursuant to the survivorship statute (755 ILCS 5/27-5) - depending upon the circumstances.

8.  How do I recover against the estate when the deceased owed money or committed a wrong?

File a claim as provided in the probate act, 755 ILCS 5/18-1, et. seq.  It is essential that a claim be filed in a timely manner and in proper form or it will be barred.  Consult with counsel and do not delay should you have a claim against an estate.

9.  How can an executor or administrator or interested person determine whether somebody owes an estate money or has property that belonged to the estate?

An executor or administrator or other interested person may petition the court to issue a citation to discover that requires the appearance of a person to give testimony regarding property of the estate and other matters and the court would hold a hearing on the citation.  755 ILCS 5/16-1, et seq.

10.  An executor or administrator has property or took property that belongs to the estate.  How can the estate recover the property from the administrator or executor?

An interested person may petition for the court to issue a citation to recover against the executor or administrator.  755 ILCS 5/16-1, et seq.

11.  Can an estate recover money that a person took from the decedent with a power of attorney or through a relationship of trust?

Yes, the estate may bring an action against the person for breach of fiduciary duty among other causes of action.

There is a presumption of undue influence when a fiduciary has a transaction with a principal which can only be rebutted by clear and convincing proof that the transaction was fair and equitable and did not result from undue influence.  After the presumption is rebutted a factual question remains for the trier of fact.  Estate of Pawlinski, 407 Ill.App.3d 957 (1st Dist. 2011).

12.  After the admission of the Will to probate court, how long do I have to contest a Will or make a claim against an estate?

13.  Is a person who accepts property pursuant to a trust or Will barred from challenging the trust or the Will?

Any person who voluntarily accepts a beneficial interest under a will or trust may be held thereby to ratify and confirm the entirety of the will or trust that conferred the benefit.  This is known as the doctrine of election.  In a case of first impression, the Appellate Court of Illinois applied the doctrine of election to a trust in the Estate of Boyar v. Dixon, 2012 IL App (1st) 111013 (2012) (reversed in 2013 IL 113655 2013).

14.  Is a trustee who engages in bad investments liable?

A trustee who violates the prudent investor rule is liable.

The prudent investor rule provides in relevant part that a trustee has a duty to pursue an investment strategy that considers both the reasonable production of income and safety of capital, consistent with the trustee's duty of impartiality and the purposes of the trust.  Whether investments are underproductive or overproductive of income shall be judged by the portfolio as a whole and not as to any particular asset.  Trustee's investments and actions are to be judged in terms of the trustee's reasonable business judgment regarding the anticipated effect on the trust portfolio as a whole under the facts and circumstances prevailing at the time of the decision or action.  The prudent investor rule is a test of conduct and not resulting performance.   Carter v. Carter, 2012 IL App (1st) 110855.

The trustee may also be removed.

15.  Is a trustee who takes money from the trust for his or her own purposes liable?

Yes, the trustee can be sued for breach of fiduciary duty among other causes of action.  The trustee may also be removed.

16.  I do not believe the trustee of my relative's trust is properly performing her duties.  What do I do?

17.  How does a beneficiary or trustee determine the terms of the trust when the trust language is unclear?

A beneficiary or trustee may bring a trust construction action. 

In interpreting trusts, which are construed according to the same principles as wills, the goal is to determine the settlor's intent, which the court will effectuate if it is not contrary to law or public policy. 

The intent sought is not that presumed to have been in the testator's mind but rather that which was expressed by language in the will.  To determine the settlor's intent, courts examine the plain and ordinary meaning of the words used in the instrument, taking into consideration the entire document. 

Accordingly, the provisions of a will or trust should not be read in isolation.  However, extrinsic evidence will only be admitted to aid construction if the trust document is ambiguous and the settlor's intent cannot be determined.  Fifth Third Bank, N.A. v. Rosen, 2011 IL App (1st) 093,533.