How to Proceed in Probate When the Life Status of the “Decedent” is Unknown

probate, presumption of death, Illinois probate act, Illinois estate planning attorneyNine years after Samuel Zagaria disappeared, his sister Joanne petitioned the Cook County probate court for a presumption of death. The court complied and appointed Joanne, Zagaria’s only heir, the administrator of her brother’s estate. But in the course of administering the estate and trying to collect insurance benefits, Samuel turned up alive. Unfortunately for Samuel, that was not the end of the story. The physical fact of his existence did not immediately invalidate the legal presumption of death. Samuel had to ask the court to revoke the presumption and to require Joanne to provide an accounting of the estate. The court complied. But again, this was not the end of the story.

Once the estate had been closed and the assets returned to Samuel, the attorneys who Joanne hired to administer the estate filed a petition requesting payment of their fees. In an unprecedented decision, the probate court ordered Samuel to pay these fees, and an appellate court upheld the ruling.

The Illinois Probate Act

Under the Illinois Probate Act, the appointed administrator of an estate can hire an attorney (or attorneys) to help discharge his or her duties. The attorney’s fees are then paid out of the assets of the estate. In this case, Samuel was legally presumed dead, which is required under the Probate Act. After the court appointed Joanne the estate’s administrator, she had the right to hire the attorneys, who in turn had a right to be compensated. While this decision seems unfair to Samuel, the court reasoned that it is a good policy to pay people for work they were legally hired to perform.

It is not always easy to overcome a presumption of death. Kimberly Haman, who recently filed a federal lawsuit in Missouri to prove that she is still alive, knows this all too well. Her problem surfaced when she applied for a new mortgage, and the bank put the refinancing on hold after a credit report listed Kimberly as deceased. She has been trying for months to have this mistake corrected and is now trying to prove her case in court.

Petitioning for Letters of Administration

When a person dies intestate, as Samuel allegedly did, the court appoints the administrator of the estate. As Samuel’s next of kin, Joanne came first in the statutory list of permissible choices. She also had to meet several requirements set forth in the Probate Act. An administrator:

  • Must be at least 18 years old;
  • Must be a resident of the United States;
  • Must be of sound mind and cannot be declared a disabled person; and
  • Cannot be a convicted felon.

Under the Probate Act, Joanne could petition the court to issue letters of administration. But she also had to petition the court for a presumption of death. To succeed in this petition, Joanne had to establish:

  • The facts and circumstances raising that presumption;
  • Samuel’s last known post office address; and
  • The name and address of anyone in possession of Samuel’s property.

This was a complicated situation, but even standard probate proceedings are best approached with skilled attorneys by your side. Our estate planning attorneys have more than 30 years of experience, so do not hesitate to contact us for assistance. We are available to those in the Naperville area.