In Re Estate of Parker
957 N.E.2d 454
Ill. App. Ct.2011Background
- Decedent Agnes B. Parker executed a will in 1978 and a codicil naming Sharon McCollom executrix in 1997.
- Decedent granted McCollom power of attorney in 1999, including authority to be compensated, with duties over assets and records.
- Decedent died February 24, 2005; McCollom filed probate petition for will and letters testamentary, estate valued around $925k-$971k.
- Citations to discover assets were issued against both the executor and heirs shortly after probate, seeking extensive financial records.
- Heirs filed petitions and the court ordered accounting proceedings; McCollom provided various accounts and documentation over several years, which heirs deemed inadequate.
- In 2010, heirs amended their citation for recovery of assets; McCollom counterclaimed for services rendered totaling $225,500; a circuit court dismissed the counterclaim as untimely under section 18-12(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 18-12(b) bars the counterclaim | Bush argues 18-12(b) is jurisdictional and bars the counterclaim | McCollom contends 13-207 salvages counterclaim despite 18-12(b) | Counterclaim is barred by 18-12(b); 13-207 does not save it |
| Whether 13-207 saves the counterclaim | McCollom relies on 13-207 to permit counterclaim against estate | Heirs contend 13-207 not applicable to probate context | 13-207 inapplicable to this probate proceeding; counterclaim remains barred |
| Relation back of amended citation to recover assets | Amended citation relates back to timely petition, preserving claims | Late amendment cannot defeat 18-12(b) bar | Amended citation relates back; nevertheless, 18-12(b) bars the counterclaim irrespective of relation back |
| Whether Rice distinguished from Epsteen in this context | McCollom relies on Rice to justify counterclaim | Heirs distinguish Rice as not involving counterclaims against the estate | Rice distinguishable; Epsteen controls; counterclaim barred |
| Subject matter jurisdiction and timeliness of claims | McCollom asserts jurisdiction due to amended citation | Heirs argue timely filing under 18-12(a)/(b) governs; action bar inevitable | 18-12(b) is jurisdictional and mandates dismissal; no revival by timing |
Key Cases Cited
- In re Marriage of Epsteen, 339 Ill.App.3d 586 (Ill. App. 1st Dist. 2003) (18-12 is jurisdictional; timely filing required; no exceptions by court)
- Estate of Rice, 154 Ill.App.3d 591 (Ill. App. 1st Dist. 1987) (Counterclaim saved under 13-207 in certain probate contexts)
- Estate Chernyk, 138 Ill.App.3d 233 (Ill. App. 1st Dist. 1985) (Amended petition relates back to timely citation to discover assets)
- In re Estate of Kremer, 190 Ill.App.3d 650 (Ill. App. 1st Dist. 1989) ( probate procedure context; liberal use of citations to discover assets)