Legal Question in Wills and Trusts in Illinois

Hi My brother is the executor of my uncles estate ( uncle just died). He is also a long time attorney but not the attorney for the estate of course, that is the attorney that took over his law firm when he retired. My brother has done the most horrible things to benefit himself in the past which is the reason we cannot unfortunately trust him. We have issues already with my brothers handling of the estate ( 2 million) but this is a question about another aspect of my inheritance.

I have one question that needs answering. It is so typical of my brother but I feel it is wholly illegal and unethical. This concerns myself and does concern the disbursement of the money from my uncles estate.

3 years ago on I was having money problems after I moved back to Illinois from Arizona after I decided to retire from my job ( I'm 60). My brother is 70. At that time, my brother knew of this and decided to help me financially but not unless I signed a Promissory Note which I signed on 8/10/07, with the knowledge I would pay him back from my inheritance upon my uncles death.. This was 3 years before my uncle died. My brother knew I was to inherit money ( just like he was as he is an heir also). My brother is also very well off, so this is not an issue of need. I signed the Prom. Note which he left blank for the amount I owed saying there would no doubt be more to come and thats what was needed to be done. Of course I'm not dumb and I knew I should not sign a blank prom note so I told him I felt uneasy doing so but I would if he would tell me what the total I owed him so far was per his calucations. We went down stairs in his house where his records are and he pulled out my file. It said $5600 on front. I said that sounded about right since this was covering the time since I quit/retired from my job as a juvenile probation officer in Arizona. in Dec. 2006 . He said its 5600 or right around there. I signed.

That note read besides the usual legalease : Obligor shall pay the holders of this note , one (1) installment fo principal and interest upon the RECEIPT of ( my caps) and within thirty (30) days of any inheritance to Obligor from the estate of ............... ( my uncle)..

I got remarried in 2007 and my brother until then ( I found work as my wife also works) loaned me approx another $2000 . My total then was of course around $7600 I owed him on that note. As we all expected however, before any money is even disbursed he is so concerned about my few thousand that my guess is he promised my loan payment to his kids like he always does. Thus even though he is also inheriting $260K it is a big concern of his. The problem now is he says I owe him not $7600, but $13, 500 !!! Why?? Because he retroacted that note to 2005 from the Dec/2006, Jan, 2007 time frame when he started helping me out. Going back to 2005 was a completely other time when he offered/gave me money as a gift and did loan me another small loan. He has retoacted the unfilled loan amount 2 years earler than when I signed it. This is not right and probably unethical/illegal but thats not my question. this is!

The real question with the estate is this. He just wrote me and called me an ingrate ( his usual wording to all of us) and he says he will take what he says I owe him on that note OUT of my inheritance BEFORE It is disbursed to me. I get a $45,000 first installment ( like all the hiers) in 2 weeks. He now has threatened to take what he says I owe him from that note , a personal loan, out of my inheritance prior to disbursement. I've been told by everyone and common sense says this is wholly illegal. even the note says UPON RECEIPT of any inheritance I have 30 days. Upon receipt has to mean MY receipt of the money. The fact that he has padded the amount I owe is bad enough but this I will not put up with.

So I ( we ) need to know, can this be true. Can an executor do this. I think not.

Please let me know. We will surely be contacting you again within the next 3 months when the estate fully is disbursed.

Thank you

John


Asked on 7/02/10, 2:02 pm

1 Answer from Attorneys
Cyndi Perez Trostin

An interesting situation, but unfortunately not one that is all that unusual in contested estates. It seems from your posting that your recourse should be through the courts. Has there been a probate estate opened yet? For a $2M estate, unless the money is actually in a trust (and not in your uncle's name), a probate estate will need to be opened. If the estate has been opened, you will want to consult with an attorney who can represent you by requesting that the estate be "supervised." If one has not been opened, as a beneficiary, you would have standing to open the estate yourself (if after consultation with an attorney, you decide to do so).

Most estates will be probated as "independent administration." However, when there is a serious dispute between the beneficiaries or between the beneficiaries and executor, an interested party may ask for "supervision." The judge will allow supervision if he/she believes that a dispute exists.

If there is a trust involved, and your uncles funds are not actually in his "estate," but instead are in a trust, there are similar issues but they must be handled in a different manner.

Good luck to you, and let me know if I can assist.

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Answered on 7/03/10, 10:05 am


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