Legal Question in Wills and Trusts in Illinois

Re: Can money be moved around by poa so that some beneficiaries are not entitled

Generally, no. The POA cannot be used to change the ownership of the assets without specific authority to do so. The reply by Cindi Perez Trostin is correct, and fairly comprehensive. Just a couple of points in addition:

1. Failure to file a will with the probate court within 30 days is a crime. Here's the Illinois statute:755 ILCS 5/6-1

Sec. 6-1. Duty to file will � altering, destroying or secreting.)

(a) Immediately upon the death of the testator any person who has the

testator's will in his possession shall file it with the clerk of the court

of the proper county and upon failure or refusal to do so, the court on its

motion or on the petition of any interested person may issue an attachment

and compel the production of the will.

(b) If any person wilfully alters or destroys a will without the

direction of the testator or wilfully secretes it for the period of 30 days

after the death of the testator is known to him, the person so offending,

on conviction thereof, shall be sentenced as in cases of theft of property

classified as a Class 3 felony by the law in effect at the date of the

offense.

(Source: P.A. 90-159, eff. 7-23-97.)

Please note the text on concealment, so your aunt cannot finesse the filing of the will, regardless of what it says, and regardless of whether a later will in someone else's possession is found, now that she has admitted that there is one.

2. Any of the grandchildren who's parent related by blood to the decedent (your grandmother) has standing to open a probate action regardless of whether a will is filed, because they are an "heir at law". If the parent is alive, the grandchildren don't inherit by intestate succession, only under the will you describe, so in that case, a grandchild can open an estate based on the will.

3. In our experience, the court fight to "put back" the money can drag out, but the heirs under a valid will ususally succeed in recovering some of the money. The expense is ultimately charged against the estate (and everyone's share), but the hard part is coming up with the initial retainer. You may want to get as large a group of the grandchildren together as possible, and act as soon as possible, before the money is dissipated.

Our comments are based on treating your question as a hypothetical. In order to fully explore your legal matter, you should meet with us or another attorney and bring to any such meeting all relevant documents and correspondence, and any other relevant facts.

We are not hired to be your attorney, and no attorney-client relationship exists between us, unless and until you enter into a written retainer agreement with us, tender the agreed amount for a retainer and it is accepted by us.

Re: Can money be moved around by poa so that some beneficiaries are not entitled

You pose a lot of questions and issues in your posting.

First of all, in Illinois, an estate valued at over $100,000 should be probated. If your aunt transferred money out of your grandfather's name during his lifetime for the annuity, and spent a substantial amount on his nursing home care, it is possible that the amount left is less than $100,000. However, an estate valued at ANY amount may be probated if there is a reason to do so.

One of your main concerns is whether your aunt had the authority to transfer money during your grandfather's life. The Power of Attorney that she used to accomplish the transfers would tell you whether she had such authority, although the exercise of power through such documents should generally follow the intent of the principal (your grandfather).

It is possible that your grandfather changed his will without your knowledge. Even though his mental health was generally poor, it is still possible to have periods of "lucidity" when he could have had the legal capacity to know what he was doing.

As a person who is named in the will (or a person who is a member of a named group - "grandchildren"), you are an interested party to the estate. This means that you have legal standing to open a probate estate for your grandfather. If you do this, you will be entitled to see the will and question whether the transfers of money were appropriate, or whether the money should be returned to the estate.

Regardless, by Illinois law, the original will is required to be filed, whether or not a probate estate is opened. It is the duty of the named executor (or a person who has possession of, or knowledge of the will) to file it within 30 days of the date of death, generally in the county where your grandfather died or had his residence.

To protect your rights, it is very important that you (along with the others who may be questioning transactions related to this estate) have an attorney who is experienced in probate matters review the documents and discuss the issues you have raised. I can not properly advise you given the limited amount of information presented, and the advice given here is only for purposes of getting you started. You should not rely on it beyond that purpose.

Good luck to you.