Settling Questions Before Settling an Estate

Novack and Macey LLP

Novack and Macey LLP

Francisco Contreras and his wife, Sandra, hired Fluxgold & Baron, P.C. (“Fluxgold”) to represent them in a lawsuit against the hospital and its staff.  The matter settled for $18.75 million.  Francisco then hired Waterville Advisors, LLC (“Waterville”) to help him purchase four annuities for himself using approximately one-third of the settlement money.  Waterville prepared an annuitant checklist for Francisco, who input his personal information, but failed to designate a beneficiary.  Waterville notified Fluxgold, and received a new signed checklist with Sandra designated the primary beneficiary, and her and Francisco’s minor daughter the secondary.  When Francisco died intestate two years later, Sandra was appointed representative of his estate.

Francisco’s three adult sons from a previous relationship filed a petition for citation to recover assets in the probate court, arguing that Sandra had exercised undue influence over Francisco to insert herself and her daughter as beneficiaries of the annuities, rather than no one.  The court converted Sandra’s role from an independent to a supervised administrator, at which Francisco’s sons moved to have Sandra’s position terminated entirely.  Francisco’s sons sued Fluxgold and its employees as well, insisting that Fluxgold and several employees were negligent and breached their duty to Francisco, his estate, and heirs by permitting Sandra to exercise her influence over Francisco and failing to use reasonable care and diligence.  Fluxgold successfully moved to dismiss, citing the statute of repose for actions against attorneys where the injury does not occur until the death of the person for whom the legal services were rendered (735 ILCS 5/13-214.3(d)).

On appeal, the First District held that “this cause most certainly falls within the auspices of section 13214.3(d),” but that questions still remained which precluded its application.  Id. at ¶46.  Specifically, facts had not yet been established as to “whether plaintiffs’ legal malpractice action against defendants was commenced ‘within the time for filing claims against the estate’ as provided in the Probate Act via incorporation by section 13-214.3(d).”  Id. at ¶68.  This was due in part to Sandra’s as yet undetermined status as a supervised administrator.  Were she to be removed, it would “directly impact when plaintiffs were required to file their claim.”  Id. at ¶74.  Also, proper publication and notice to the creditors of Francisco’s estate still needed to be accomplished.  Doing so could “restart the clock” for filing claims against the estate.  Id.  In light of so many open issues, the First District reversed and remanded, holding that the trial court lacked the “reasonable certainty” necessary for dismissal.  ¶78.

Estate of Contreras by Contreras v. Fluxgold, 2019 IL App (1st) 172916-U

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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