2020 IL App (2d) 190140
Ill. App. Ct.2020Background
- Lillie Martin (born 1930) revised her estate plan in 2013, naming Tina 50%, Paul 25%, and Alan 25% under a revocable trust; she also held a UBS investment account titled as a transfer-on-death (TOD) account equally to the three siblings.
- In 2017 Tina, Paul, and Alan each filed competing petitions for guardianship of Lillie; a guardian ad litem (GAL) was appointed and extensive litigation (including a motion to disqualify Tina’s counsel) followed.
- Lillie died in May 2018 before a guardian of the person or estate was appointed; after her death Tina’s counsel (Kabbe Law) and Paul’s counsel filed fee petitions; Alan (an attorney who proceeded pro se) also filed a fee petition.
- The trial court awarded fees to Tina and Paul and ordered payment from the UBS TOD account, denied Alan’s fee petition and his motion to disqualify Tina’s attorneys, and approved certain GAL fees; the court later ordered partial liquidation of a mutual fund in the UBS account to satisfy fees.
- Alan appealed, arguing lack of subject-matter jurisdiction after Lillie’s death, that the TOD account could not be used to pay fees, that the court erred in denying his disqualification motion, and that he was entitled to pro se attorney fees.
- The appellate court affirmed in part and reversed in part: it held the trial court had subject-matter jurisdiction and correctly denied Alan pro se fees, but erred in ordering payment from the UBS TOD account and remanded for fees to be sourced from estate assets (if any).
Issues
| Issue | Plaintiff's Argument (Alan) | Defendant's Argument (Tina / Trial Court) | Held |
|---|---|---|---|
| 1) Subject-matter jurisdiction to award fees after ward’s death | Court lost guardianship jurisdiction when Lillie died; therefore could not award fees | Circuit court has constitutional jurisdiction over justiciable matters; fee petitions fall within Probate Act authority | Court: Jurisdiction present; fee petitions were justiciable and within court’s power (affirmed) |
| 2) Payment of attorney fees from UBS TOD account after Lillie’s death | UBS TOD assets passed immediately to beneficiaries and are not estate assets; court erred ordering fees paid from TOD | Fees should be payable and TOD liquidation argued to have occurred or equitable contribution justified | Court: Error to order payment from TOD; TOD assets vest in siblings and are not part of estate (reversed as to source of payment) |
| 3) Motion to disqualify Tina’s attorneys | Kabbe Law had conflicts from prior relationships; disqualification should have been decided before fee awards | Issue became moot after decedent’s death because no guardian appointment remained | Court: Mootness — disqualification issue dissipated with Lillie’s death (affirmed dismissal) |
| 4) Pro se attorney fees for Alan | As an attorney, Alan should recover reasonable fees for his representation | Controlling precedent bars recovery by an attorney who represents himself pro se | Court: Denial upheld — pro se attorneys may not recover attorney fees under statute (affirmed) |
Key Cases Cited
- McCormick v. Robertson, 2015 IL 118230 (explains circuit courts have constitutional subject-matter jurisdiction over justiciable matters)
- People v. Castleberry, 2015 IL 116916 (definition of subject-matter jurisdiction and related principles)
- In re M.W., 232 Ill. 2d 408 (justiciability standards for probate-related matters)
- Hamer v. Lentz, 132 Ill. 2d 49 (attorney who proceeds pro se may not recover attorney fees under fee-shifting statutes)
- State ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL 122487 (applies Hamer principle to bar pro se fee recovery under statutory fee-shifting)
- In re Estate of Gebis, 186 Ill. 2d 188 (addressed limits on statutory jurisdiction but distinguished here by later authority)
- In re Estate of Roselli, 70 Ill. App. 3d 116 (recognizes that an attorney for a person seeking guardianship can be entitled to fees)
- In re Estate of Breault, 63 Ill. App. 2d 246 (historically allowed probate courts equitable contribution to reach certain nonprobate assets; court here distinguishes and disavows that aspect)