Illinois Probate Law Allows Executors to Set Multiple Deadlines for Claims Against Estates, Appeals Court Decides


A legal malpractice plaintiff who is also the executor of an estate may issue new creditor notices to avoid having his case dismissed, the First District Court of Appeal decided March 31. In Jaason v. Sullivan, No. 1-08-1254 (Ill. 1st Dist. March 31, 2009), the executor, Erik Jaason, filed a Chicago legal malpractice lawsuit against Barbara J. Sullivan and B.J. Sullivan & Associates for alleged mistakes in a will Sullivan prepared for Alexander Koepp.

In his complaint, Jaason alleges that Koepp instructed Sullivan to prepare a will giving Jaason the right to purchase Koepp’s home for $150,000, at Jaason’s discretion. However, Koepp’s home was already held in joint tenancy with his wife, Karsti Koepp. Thus, upon Alexander Koepp’s death in November of 2006, the property was outside the purview of the will and passed to Karsti Koepp under the joint tenancy, leaving Jaason with no option to purchase it. He sued Sullivan in December of 2007 for legal malpractice, alleging that her failure to recognize and take action on the joint tenancy fell outside the applicable standard of care.

In response, Sullivan filed a motion to dismiss the suit as time-barred. The Illinois Code of Civil Procedure requires that, in cases where probate has been opened, plaintiffs must file their claims for legal malpractice within the time given for claims against the estate or the time given for contesting the validity of a will — whichever is greater. The six-month window for contesting the will had clearly elapsed in the 13 months since Koepp’s death. To make a claim against an estate, creditors in Illinois have three months from the date they receive a notice of the death in the mail, or six months from the date of publication of the death as a legal notice, whichever is later.

As the independent executor of Koepp’s will, Jaason had already published notice of the death giving a deadline of December 1, 2007 — just before the legal malpractice lawsuit was filed. On February 7, 2008, the same day of Sullivan’s motion to dismiss, he placed new creditor notices giving a deadline of May 9, 2008. Jaason argued that these new notices made his legal malpractice lawsuit timely. Sullivan argued that the Probate Act does not allow different deadlines for different creditors, requiring one notice and one deadline for all potential creditors. Thus, she argued, the court must dismiss Jaason’s claim as untimely.

The First District disagreed. Construing the plain language of the Probate Act, it found that the “whichever is later” provision clearly allows different deadlines for different creditors. Because the most recent notice to creditors went out in February of 2008, two months after the legal malpractice suit was commenced, the court found that Jaason’s claim was timely. It added that it is not unaware of the self-interest involved in Jaason’s actions, as both the personal representative of Koepp’s estate and the plaintiff in this claim. However, the judges wrote, there is no evidence to show that the notices were fraudulent. Thus, the dismissal of Jaason’s suit was reversed and remanded to trial court.

The Illinois, Wheaton, Waukegan, Wilmette and Chicago civil litigation lawyers and probate and business trial attorneys at Lubin Austermuehle handle malpractice claims and contested probate estate lawsuits. Based in Oakbrook Terrace, near Oak Brook, Wheaton, and Chicago, Lubin Austermuehle represents clients in state and federal courts throughout Illinois and the Midwest. Our Illinois legal malpractice attorneys represent clients aggressively in malpractice claims and fee disputes, working hard to ensure that justice is served. If you are involved in a legal malpractice lawsuit and you’re looking for experienced representation, Lubin Austermuehle can help. To learn more at a free consultation, please contact us online or call 630-333-0333 today.

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