PART 14.00 PROBATE PROCEEDINGS
(Effective December 1, 2006)
A. The definitions in the Probate Act of 1975, 755 ILCS 5/1-1 et. seq., as amended, shall apply to these rules:
1. “Court” refers to Probate Court.
2. “Judge” means a Circuit Judge or Associate Judge assigned to the Probate Court.
3. “Representative” includes executor, administrator, administrator to collect, administrator with will annexed, standby guardian, guardian, and temporary guardian but does not include an independent administrator or executor.
4. “Independent administrator” means an executor or administrator as defined in Article XXVIII of the Probate Act.
5. “Ward” includes minor and disabled person.
6. Section references are to sections of the Probate Act.
B. An action to contest admission or denial of a will, to enforce a contract to make a will, to construe a will, or to appoint a testamentary trustee during the period of administration of an estate, shall be assigned a Chancery case number in accordance with the Supreme Court Manual on Record Keeping. The parties shall be designated as in other civil actions. Unless otherwise ordered by the Presiding Judge of the Civil Division, the action shall be heard by the Probate Judge to whom the estate has been assigned.
A. If a bond with personal sureties is proffered, it must be accompanied by:
1. A petition, verified by the representative, stating:
a. the gross value of the personal estate, excluding real estate, but including the income derived therefrom, if any,
b. The estimated monthly maintenance expenses for the ward,
c. The estimated amount of claims and taxes, and
d. Whether the adult heirs or legatees or the nearest relatives of a ward approve the bond, with their approvals attached, and
2. A schedule of the property and net worth of each proposed surety, executed under oath by the proposed surety, unless the filing of a schedule is excused by the Court upon the consent of all heirs and/or legatees in a decedent’s estate or upon good cause shown in a ward’s estate.
B. If the proffered bond is approved by the Court, the petition and the schedules shall be filed with and become a part of the bond. The personal representative or his attorney, within seven (7) days, shall mail copies of the petition, bond, and schedules to each heir, legatee or nearest relative, as the case may be, except to those whose approval is on file. Proof of mailing shall be filed with the clerk.
A. When the funds of a ward’s estate, derived from any source, are to be deposited pursuant to Section 24-21 of the Probate Act, the Court may waive the filing of a bond by the entry of an order which authorizes the deposit and which requires:
1. that a distribution to the ward’s estate be made payable jointly to the guardian, if any, and the depository, and
2. that a certified receipt of the depository be filed with the Clerk of the Court. The receipt shall be executed by an authorized agent of the depository and shall certify that no withdrawals may be made without Court approval.
B. If a representative of the ward’s estate has been appointed, the filing of the receipt of the depository, as prescribed herein, may be considered a final account, whereupon the Court may release the representative and the sureties on his bond. The case shall thereafter be designated closed by the Clerk of the Court.
A bond with a corporation or association licensed to transact surety business in the State of Illinois as surety will be approved only if a current copy of the surety’s authority to transact business in this State, as issued by the Director of Insurance, and a verified power of attorney or a certificate of authority for all persons authorized to execute bonds for the surety are attached to the bond.
A. The petition for appointment of a representative of a decedent or a ward shall disclose whether or not there exists a safe deposit box belonging to the estate or ward and the location thereof.
B. The initial inventory shall list the existence of any safe deposit box and the location thereof.
C. The representative shall prepare an itemized statement of the contents of the safe deposit box, which shall be certified as true and correct by the representative. An itemized statement of the contents shall be included in the inventory filed with the Clerk of the Court.
D. Any after discovered safe deposit box shall be inventoried forthwith in accordance with this rule and a supplemental inventory listing the box and its contents shall be filed with the Clerk of the Court no later than thirty (30) days from the date of discovery.
A. Unless excused by the Court pursuant to Section 24-1(b) of the Probate Act, every representative of a decedent’s estate shall present to the Court, for approval, a verified account of the administration of the estate as required by Section 24-1(a) of the Probate Act within sixty (60) days after the expiration of one (1) year after the issuance of letters of office. Thereafter, a verified account shall be filed annually within sixty (60) days after the anniversary date of the issuance of letter of office until the administration is completed.
B. Whenever an order is entered granting independent administration pursuant to Section 28-2 of the Probate Act, the independent representative shall file in open court a verified report on the status of the estate each year within thirty (30) days after the anniversary date of the entry of the initial order granting independent administration until the estate is closed.
C. Unless excused by the Court, every guardian shall present to the Court for approval the verified account and evidence required by Section 24-11(a) of the Probate Act within sixty (60) days after the expiration of one (1) year after the issuance of letters and annually thereafter within sixty (60) days after the anniversary date of the first verified account until the estate is closed.
D. Each current report shall disclose to the Court the pendency of any claim, suit or proceeding by or against the estate or the representative of the estate and, in estates of deceased persons, any other reason which prevents final distribution and termination of the estate.
E. Each account shall include to the satisfaction of the Court, the following categories:
1. The assets on hand at the beginning of the period of time covered by the account.
2. The income received during the period of time covered by the account.
3. The disbursements made during the period of time covered by the account.
4. The assets on hand at the close of the period of time covered by the account.
F. No representative shall be discharged until a final account has been filed and approved by the Court.
G. Except as hereinafter provided, in an estate in which an account and/or report has not been filed and approved as required by Paragraphs A, B and C above, the Clerk shall issue and mail a notice to both the representative and attorney of record in the estate, advising them that an account and/or report must be filed in accordance with these rules, and notifying them that in the event an account and/or report is not so filed they must appear on a date certain fixed by the Court to explain why they have not done so and further notifying them that failure to appear on the date so fixed may subject them to contempt proceedings and the imposition of sanctions.
A. Notice of the hearing on a final account of an executor or administrator or on a current account that is intended to be binding pursuant to Section 24-2 of the Probate Act, shall be given to the persons described in Section 24-2 of the Probate Act, as follows:
1. Such notice shall be in writing accompanied by a copy of the account, except where notice is to be given by publication.
2. The notice shall contain the time, place and nature of the hearing and substantially the following sentence: “If the account is approved by the Court upon the hearing, in the absence of fraud, accident or mistake, the account as approved may be binding upon all persons to whom this notice is given.”
3. The notice shall be given at least seven (7) days prior to the hearing in the manner provided by Supreme Court Rule 11 except when notice is by publication as herein provided, and except that whenever the person resides outside the continental limits of the United States, the notice shall be by airmail at least twenty-one (21) days prior to the date of hearing.
4. Whenever the name or place of residence of any such person is unknown and upon due diligence cannot be ascertained, and an affidavit to that effect is filed with the Clerk of the Court by the executor or administrator, then notice shall be given to such person by mailing the same to the last known address and by publication at least once in some newspaper of general circulation published in the County at least twenty-one (21) days prior to the date of the hearing.
5. Proof of such notice shall be filed with the Clerk of the Court on or before the date of the hearing.
6. No notice need be given to any person from whom a receipt in full is filed with the Court or who entered his appearance in writing and waives notice.
B. Notice of the hearing on a current or final account of a guardian shall be given to the ward, if living, to each claimant whose claim has been filed and remains undetermined or unpaid, to the heirs at law or legal representative of a deceased ward, and where entitled, to the Chief Attorney of the Administrator of Veteran Affairs. Such notice shall be given in the manner provided for in Section A of this rule.
When service of notice is required pursuant to Section 11-10.1 or Section 11a-10(f) of the Probate Act, proof of service shall be filed with the Clerk in the manner provided for in Supreme Court Rule 12.
When a claim against the estate of a decedent or a ward is filed with the Court pursuant to Section 18-1 of the Probate Act, the Clerk of the Court, within seven (7) days of the filing of the claim, shall send to the representative of the estate and to the claimant, or to their attorneys, if they are represented by counsel, a notice setting a call of the claim pursuant to Section 18-7 of the Probate Act. The notice shall set the call of the claim no less than sixty (60) days from the date of the filing of the claim and shall inform the parties that if the claimant fails to appear for the call of the claim, the claim may be dismissed for want of prosecution and that if the representative fails to appear, and no other person, whose interests may be affected by the allowance of the claim objects, the claim may be allowed against the estate. No less than thirty (30) days prior to the date of the call of the claim, the representative shall notify all other parties of record of the call of the claim by forwarding to them a copy of the claim and of the notice from the Clerk. The representative shall file proof of such notice with the Clerk on or before the date of the call of the claim.
Upon presentation of an account, the representative shall furnish receipts for any distributions set forth in the account and a certificate of the representative stating that vouchers evidencing the disbursements are in the possession of the representative. The Court may require the presentation of vouchers for examination.
On the final account and settlement of a ward’s estate when the person entitled to the estate is the ward, the guardian will not be discharged unless the ward appears before the Court and acknowledges the settlement and approves the final account in open court. The personal attendance of the ward may be waived by the Court whenever the Court is satisfied, by affidavit of the ward filed with the Clerk or by other evidence, that the final settlement is just and equitable, that the ward is in possession of all of his estate, and that the personal attendance of the ward is impracticable.
A. If an heir-at-law of an intestate estate or a devisee or legatee of a testate estate is a minor, or dies or is adjudicated incompetent, such fact shall be set forth in any petition requesting authority to make distribution.
B. Except where the distributive share qualified for distribution under Article XXV of the Probate Act, or under 20 ILCS 1705/22, distribution will be authorized only to the legal representative of such person.
Closing of an estate will not be authorized unless:
A. Receipts on the distribution or other evidence of distribution satisfactory to the Court are on file with the Court from all distributee; and
B. The legal representative has filed a verified final report, in addition to the final account. The final report shall verify that all procedures and administrative duties have been completed and that proper notice has been given to all heirs and/or legatees who have not previously appeared and consented, and shall include a statement that:
1. all court costs have been paid,
2. all claims filed have been satisfied or dismissed, and
3. all applicable state and federal taxes, if any, have been paid.
A. If any interested person has cause to believe that the order declaring heirship is erroneous or incomplete, he shall bring it promptly to the attention of the Court upon proper notice and motion.
B. If there is a change in distributive rights during the administration of al estate, including a change resulting from death, renunciation, disclaimer or other election provided by law, upon motion of any person or the Court’s own motion, and order shall be entered determining the appropriate distribution.
The distributive share of a citizen and resident of a foreign country may be paid to the attorney-in-fact for such distributee or to the official representative of such foreign country (hereinafter referred to as “ORFC”) who is entitled there to pursuant to treaty or convention between that country and the United States, in the following manner:
A. Such ORFC or such attorney-in-fact shall present satisfactory evidence to the Court that his principal is, in fact, the person entitled to receive such distributive share and that such ORFC has been duly authorized by treaty or convention or that such attorney-in-fact has been duly authorized by a power of attorney, to receive such distributive share.
B. Each power of attorney shall be signed by the distributee and properly authenticated and acknowledged before the American Consul of the jurisdiction in which the foreign distributee resides, unless the Court shall be satisfied with other evidence of the genuineness or validity of the power of attorney.
C. The ORFC or attorney-in-fact shall acknowledge receipt in writing of the distributive share received from the representative of the estate. The representative of the estate shall file the receipt with the Court.
A. No distribution shall be made pursuant to an assignment or a power of attorney signed by a distributee of an estate unless the assignment or power of attorney has been approved by the Court upon the filing of a verified petition with appropriate notice stating that the power of attorney or assignment has not been revoked and setting forth the following:
1. The consideration paid or to be paid and fees and expenses charged or to be charged to the grantor of the power of attorney or the assignor of the assignment.
2. The name and address of the grantor and grantee of the power of attorney or the assignor and assignee of the assignment.
B. Each power of attorney or assignment shall be signed and acknowledged by the grantor of the power of attorney or by the assignor of the assignment in accordance with the Illinois Uniform Recognition of Acknowledgment Act. 765 ILCS 30/1 et seq.
C. The representative, on making any distribution to an assignee or person acting under authority of a power of attorney, shall not make any distribution without first receiving a certification from the assignee or holder of power of attorney that the assignment or grant of power of attorney has not been revoked.
A. Prior to, or at the time of the closing of an estate, in which a testamentary trust has been established, the trustees shall file with their receipt for the trust assets, proof that the beneficiaries of said trust have been given notice of their right to petition the Court for the purpose of construing the trust or to take over supervision of the trust should the trustees fail to abide by the terms of the trust or to make annual accountings thereof to the beneficiaries.
B. Such notice shall also be given to a properly appointed personal fiduciary or the guardian ad litem and to the guardian of any minor or disabled beneficiary.
C. The proof of service of the notice to beneficiaries shall be filed with the Clerk of the Court prior to closing of the estate.
A. If money has been deposited as provided in Section 24-21 and the balance drops below the amount which may be transferred pursuant to Section 25-2 and no part of the estate consists of real estate or a pending cause of action for personal injuries, a petition may be filed requesting distribution of the balance of the funds without further administration.
B. When a guardian is acting and the estate under administration is or becomes less than the amount which may be transferred pursuant to Section 25-2 and no part of the estate consists of real estate or a pending cause of action for personal injuries, a petition may be filed requesting distribution of the estate without further administration. If it appears that there is no unpaid creditor and that it is for the best interest of the estate and the ward, the Court may order the guardian to file his final account and make distribution as the Court directs. Upon filing of a receipt on distribution, the guardian may be discharged and the estate closed.
A. Any petition to withdraw funds pursuant to Section 24-21 as well as any petition by a guardian for the expenditure of funds on behalf of a ward shall state the following:
1. The value of the estate at the time of presenting the petition; and
2. The annual income of the ward and the source of the income.
B. The petitioner shall present the petition in person unless personal presentation is excused by the Court. The petitioner shall furnish evidence that the sums to be used are necessary for the ward’s support, comfort, education or other benefit to the ward or his dependents.
Amendment to Rule 14.20, ALLOWANCE OF FEES of Part 14.00, PROBATE PROCEEDINGS, of the Uniform Rules of Practice, Circuit Court of Illinois, Nineteenth Judicial Circuit.
A. All fees payable to a representative or to an attorney for a representative must be approved by the Court pursuant to a verified petition with notice to all interested parties, unless the fees in a specific dollar amount have been consented to in writing by all interested parties as defined in Section 1-2.11 of the Probate Act.
B. A petition for fees shall state the following:
1. the gross value of the estate,
2. the hours expended and details of work done,
3. a detailed itemization of any expense for which reimbursement is sought; and,
4. with respect to attorney’s fees, any other pertinent factor described in the Illinois Rules of Professional Conduct of 2010, Rule 1.5, as now and hereafter amended.
C. In a ward’s estate, fees will be considered only when a petition for fees is presented for the Court’s approval except as otherwise provided in Local Rule 14.24.
||Amended by the Circuit of the |
Nineteenth Judicial Circuit
this 9th day of April, 2012 and
Any claimant applying to the Court to obtain funds deposited with the County Treasurer shall give notice of his application to obtain funds to the State’s Attorney and to such other persons as the Court directs.
A. A petitioner or claimant desirous of a trial by jury, where permitted, except in cases involving disabled adults, must file a jury demand with the Clerk and pay the fee at the time he files his petition or claim. A representative, citation respondent, or other party in interest opposing the petition, citation, or claim and desirous of a trial by jury must file a jury demand and pay the fee at the time he files his answer or other responsive pleading. If the petitioner or claimant files a jury demand and thereafter waives a jury, the representative, citation respondent, or other interested party opposing the claim will be granted a jury trial upon demand promptly made after being advised of the waiver and upon payment of the fee.
B. Jury demands in cases involving disabled adults shall be governed by the requirements of Section 11a-11 of the Probate Act.
A. Each petition for leave to settle a cause of action for personal injuries sustained by a minor or disabled person, or a case of action for the wrongful death of a person whose estate is in the course of administration, when no separate lawsuit is pending, shall be executed by the representative. The attorney for the representative, if any, shall certify in writing as a part of the petition that, in his opinion, based upon the law and the facts and law applicable thereto, the proposed settlement is just and proper.
B. The Court may, on its own motion, appoint a guardian ad litem to investigate the merits of the proposed settlement.
C. Any order in the Probate Court approving a settlement of a wrongful death action shall also establish the distributive rights of the persons entitled to the proceeds.
D. A petition to settle an action on behalf of a minor or disabled person shall have attached thereto a report of the attending physician stating the nature and extent of the injury.
In the case of a minor, the minor shall appear in open court at the hearing on the petition.
E. If the petition proposes a “structured settlement,” future payments must be guaranteed by an entity rated “A” or higher by Best’s Insurance Guide or other rating service found acceptable to the Court.
F. The order entered approving settlement shall provide for the distribution of the settlement funds and the filing of vouchers, which evidence receipt of any portion of the fund, with the Court within a time prescribed by the Court.
G. When any settlement funds are to be received by a parent or legal representative on behalf of a minor child, such funds shall be required to be deposited in an account in a financial institution approved by the Court for the benefit of the minor, and shall not be withdrawn without approval by Court order. The financial institution so approved by the Court shall be insured either by the Federal Deposit Insurance Corporation (F.D.I.C.) or by the Federal Savings and Loan Insurance Corporation (F.S.L.I.C.).
The Court shall continue the case to a specific date for the purpose of having a voucher from the financial institution filed. The voucher from the depository shall acknowledge receipt of the funds and a copy of the order of the Court approving settlement and shall include the express language that “No withdrawals shall be made from this account, unless authorized by order of Court, at any time prior to [date upon which the minor will reach the age of majority].”
H. A petition for withdrawal from said account prior to the minor reaching the age of majority shall be in writing and shall state the amount in the account at the time of presenting the petition, the annual income available to the minor, the amount and purpose for the withdrawal, and the amount of the last authorization for withdrawal from the account for the same purpose.
I. Unless a statute provides for a lesser fee amount, any allowance for fees out of a settlement of a cause of action for personal injuries to a minor or disabled person or out of a distribution to a ward as a result of the settlement of a wrongful death cause of action shall not exceed twenty-five (25) percent of the settlement. However, if it shall appear to the Court upon the filing of a verified petition by the attorney prosecuting the cause of action that the twenty-five (25) percent fee would not fairly compensate the attorney for the work performed, the Court shall fix the fee at whatever amount it determines to be fair and reasonable.
A. The settlement without trial of a pending lawsuit for personal injuries sustained by a minor or disabled person shall be presented for approval to the judge hearing the case. Approval shall be subject to the provisions of Local Rule 14.23, except that the judge hearing the case may waive the filing of a written petition under Local Rule 14.23 for the approval of attorney’s fees in excess of twenty-five (25) percent of the settlement. If the judge hearing the case approves the settlement, the order approving the settlement shall set forth the attorney’s compensation, the cost, the expenses, and the net amount distributable to the minor or disabled person.
B. For distribution to be made as a result of a lawsuit for personal injuries sustained by a minor or disabled person where a judgment has been entered after trial, the judge hearing the case shall enter an order for distribution setting forth the amount of the judgment, the attorney’s fees, the costs, the expenses, and the net amount distributable to the minor or disabled person. Distribution shall be subject to the provisions of Local Rule 14.23, except that the judge hearing the case may waive the filing of a written petition under Local rule 14.23 for approval of attorney’s fees in excess of twenty-five (25) percent of the award.
C. The Order setting forth the distribution shall provide that the amount distributable to the minor or disabled person shall be paid only to the representative of the minor or disabled person appointed by the Probate Court in the estate filed on behalf of the minor or disabled person and that vouchers evidencing receipt of the funds be filed with the Court within a time prescribed by the Court. In the event that an estate has not yet been opened, a petition for guardianship shall be filed with and heard by the Probate Court within thirty (30) days of the trial judge’s order. A copy of the trial judge’s order shall be attached to the petition for guardianship.
D. If the petition proposes a “structured settlement”, future payments must be guaranteed by an entity rated “A” or higher by Best’s Insurance Guide or other rating service found acceptable to the Court.
E. When any settlement funds are to be received by a parent or legal representative on behalf of a minor child, such funds shall be required to be deposited in an account in a financial institution approved by the Court for the benefit of the minor, and shall not be withdrawn without approval by Court order. The financial institution so approved by the Court shall be insured either by the Federal Deposit Insurance Corporation (F.D.I.C.) or by the Federal Savings and Loan Insurance Corporation (F.S.L.I.C.).
The Court shall continue the case to a specific date for the purpose of having a voucher from the financial institution filed. The voucher from the depository shall acknowledge receipt of the funds and a copy of the order of the Court approving settlement and shall include the express language that “No withdrawals shall be made from this account, unless authorized by order of court, at any time prior to [date upon which the minor will reach the age of majority]”.
F. A petition for withdrawal from said account prior to the minor reaching the age of majority shall be in writing and shall state the amount in the account the time of presenting the petition, the annual income available to the minor, the amount and purpose for the withdrawal, and the amount of the last authorization for withdrawal from the account for the same purpose.
G. If the amount distributable to the minor or disabled person is less than the amount provided in Section 25-2 of the Probate Act, the judge hearing the case may, by order, provide for distribution in accordance with the provisions of Section 25-2 of the Probate Act.
The procedure to be followed in law cases involving actions for wrongful death brought on behalf of a decedent by the representative appointed in the decedent’s estate by the Probate Court, when pending in a court other than the Probate Court shall be as follows:
A. The settlement of a pending lawsuit for wrongful death without trial shall be presented for approval to the judge hearing the case. Unless waived by the judge hearing the case, the provisions of Local Rule 14.23 shall apply. If the judge hearing the case approves the settlement, the order approving the settlement shall set forth the attorney’s compensation, the costs, the expenses, and the net amount distributable to the legal representative or to each person entitled thereto pursuant to the provisions of the Wrongful Death Act.
B. For distribution to be made under a pending lawsuit in a wrongful death case where a judgment has been entered after trial, the judge hearing the case shall enter an order for distribution setting forth the amount of the judgment, the attorney’s fees, the costs, the expenses, and the net amount distributable to the legal representative or to each person entitled thereto pursuant to the provisions of the Wrongful Death Act.
C. When the distributable amount received by a representative pursuant to the provisions of this section is an asset of the decedent’s estate and is further subject to the provisions, of the Probate Act, it shall be accounted for and administered in the decedent’s estate. It shall be the responsibility of the representative to furnish a bond in sufficient amount to cover any increase in the value of the personal estate occasioned by the distribution.
In cases involving actions for wrongful death brought pursuant to 740 ILCS 180/2.1, where no probate proceedings have been opened on behalf of the decedent’s estate, the judge to whom the wrongful death action is assigned may appoint a special administrator for the deceased party without the necessity of opening a decedent’s estate upon the filing of a verified petition with notice to the heirs and legatees of the decedent as the Court directs.
Whenever the Court determines that there has been no activity in any estate for a period of time not less than one (1) year or whenever the Court determines that a representative has failed to comply with the provisions of Local Rule 14.06, the Court may order transfer of the estate to an inactive docket. The case shall thereafter be designated closed by the Clerk of the Court. The estate may be reopened and removed from the inactive docket on motion and order of court.
14.28 (Amended) PROBATE MEDIATION PROGRAM
A. Applicability. This Section 14.28 is intended to govern mediation in probate matters. Unless otherwise addressed in these rules, the provisions of the Uniform Mediation Act (710 ILCS 35/1 et seq.) shall apply.
B. Purpose of Mediation Process. Mediation under these rules involves a voluntary confidential process where by a neutral mediator, selected by the parties or appointed by the probate judge, assists the parties in reaching a mutually acceptable agreement. It is an informal and non-adversarial process. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives and reaching an agreement. Parties and their representatives are required to mediate in good faith.
C. Disputes Eligible for Court-Annexed Mediation. Except as hereinafter provided, the Probate Judge may order any contested probate matter referred to mediation. In addition, the parties to any such matter may file a written stipulation to mediate any issue between them at any time. Such stipulation shall be incorporated into an Order of Referral.
D. Appointment of the Mediator.
1. Appointment by Stipulation. In the Order of Referral or within 14 days of the entry of the Order of Referral, the parties may agree upon a stipulation with the court designating:
a. A certified mediator; or
b. A mediator who does not meet the certification requirements of these rules but who, in the opinion of the parties and upon review by and approval of the Probate Judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case.
2. Appointment by Court. If the parties cannot agree on a mediator within fourteen (14) days of the entry of the Order of Referral, the petitioner’s attorney (or another attorney agreed upon by all attorneys) shall so notify the Probate Judge within the next seven (7) days and the court shall appoint a certified mediator selected by rotation or by such other procedures as may be adopted by administrative order of the Chief Judge.
3. Disqualification of a Mediator. Any party may move to enter an order disqualifying a mediator for good cause. If the court rules that the mediator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators from disqualifying themselves or refusing an assignment. The time for mediation shall be tolled during any periods in which a motion to disqualify is pending.
E. Motions to Dispense or Defer or for Emergency Relief.
1. Motion to Dispense with Mediation. A party may move, within fourteen (14) days after the entry of the Order of Referral, to dispense with mediation if:
a. The issue to be considered has been previously mediated between the same parties pursuant to Local Rule of the Circuit Court of Lake County;
b. The issue presents a question of law only;
c. Other good cause is shown.
2. Motion to Defer Mediation. Within fourteen (14) days of the Order of Referral, any party may file a motion with the probate court to defer the mediation. The movant shall set the motion to defer the mediation proceeding prior to the scheduled date for mediation. Notice of the hearing shall be provided to all interested parties, including any mediator who has been appointed. The motion shall set forth in detail, the facts and circumstances supporting the motion. Mediation shall be tolled until disposition of the motion.
3. Interim or Emergency Relief. A party may apply to the court for interim or emergency relief at any time. Mediation shall continue while such a motion is pending absent a contrary order of the court or a decision of the mediator to adjourn pending disposition of the motion.
F. Scheduling of Mediation.
1. Conference or Hearing Date. Unless otherwise ordered by the probate court, the first mediation conference shall be held within eight (8) weeks of the Order of Referral.
2. Notice of Date, Time and Place. Within 28 days of being advised of the entry of an Order of Referral, the mediator shall notify the parties in writing of the date and time of the mediation conference. Unless all parties and the mediator otherwise agree, all probate mediations will be held at the Lake County Arbitration Center, 415 Washington Street, Suite 106, Waukegan, IL 60085.
G. Mediation Procedures.
1. Mediator. The mediator shall at all times be in control of the mediation and the procedures to be followed in mediation.
2. Mediation Summary. At least seven (7) days before the conference, each side shall present to the mediator a brief (one page), written summary of the case containing a list of issues as to each party. If the attorney filing the summary wishes its contents to remain confidential, she/he should advise the mediator in writing at the same time this summary is filed. The summary shall include the names of all participants in the mediation, the facts underlying the dispute, statement of the law, positions advocated by the parties and any offers or demands regarding settlement.
3. Attendance at a Mediation Conference. All parties, attorneys, representatives with settlement authority and other individuals necessary to facilitate settlement of the dispute, who are identified in the Order of Referral, shall be present at each mediation conference unless excused by court order.
A party is deemed to appear at a mediation conference if the following persons are physically present:
a. The party or its representative having full authority to settle without further consultation and in all instances, all Petitioners and any party who has filed an appearance must appear at the mediation conference; and,
b. The party’s counsel of record, if any.
Upon motion, the Court may impose sanctions against any party or attorney who fails to attend the mediation conference and participate in good faith, as provided above, including, but not limited to, mediation costs and reasonable attorney fees relating to the mediation process.
4. Adjournments. The mediator may adjourn the mediation conference at any time and may set times for reconvening the adjourned conference. No further notification is required for parties present at the adjourned conference.
5. Counsel. Counsel shall be permitted to communicate privately with their clients.
6. Communication with Parties. The mediator may meet and consult privately with each party and her/his representative during the mediation process.
7. Termination of Mediation. Mediation shall be completed within seven (7) weeks of the first mediation conference unless extended by the order of the court or by stipulation of the parties. Mediation shall terminate prior to the end of seven (7) weeks in the following circumstances:
a. All issues referred for mediation have been resolved.
b. The parties have reached an impasse, as determined by the mediator.
c. The mediator concludes that the willingness or ability of any party to participate meaningfully is so lacking that an agreement on voluntary terms is unlikely to be reached by prolonging the negotiations.
8. Report of Mediator. Within fourteen (14) days after the termination of mediation for any reason, the mediator shall file with the probate court a report in a form prescribed by the Chief Judge as to whether or not an agreement was reached by the parties. The report shall be signed by the mediator and shall designate, “full agreement,” “partial agreement” or “no agreement.” A copy of the report must be sent to the parties and to the Arbitration Center.
9. Sanctions. In the event of any breach or failure to perform under the settlement agreement, the court upon motion may impose sanctions, including costs, attorney fees, or other appropriate remedies including entry of judgment on the agreement.
10. Discovery. Whenever possible, the parties are encouraged to limit discovery (prior to completing the mediation process) to the development of the information necessary to facilitate a meaningful mediation conference. Discovery may continue throughout mediation.
11. Confidentiality of Communications. All oral or written communications in a mediation conference, other than executed settlement agreements, shall be exempt from discovery and shall be confidential and inadmissible as evidence in the underlying cause of action unless all parties agree otherwise. Evidence with respect to alleged settlement agreements shall be admissible in proceedings to enforce the settlement. Subject to the foregoing, unless authorized by the parties, the mediator may not disclose any information obtained during the mediation process.
H. Mediator Qualifications
1. List of Probate Mediators. The Probate Judge shall maintain a list of probate mediators who have been certified by the court and who have registered for appointment. The list shall be submitted to the Probate Judge, who shall have the discretion to include or remove persons from the list at any time or to waive any of the requirements below, when necessary to promote the highest standards of competency. An applicant denied inclusion on or removed from the list, may appeal the decision in writing within ten (10) days to the Chief Judge. The Chief Judge shall decide the appeal after an opportunity for the applicant or member to be heard. The decision of the Chief Judge shall be final. The list shall be reviewed in every even numbered year.
2. Certification. Any person who meets the following criteria is eligible to apply to serve as a mediator for the purposes of this rule, if the applicant:
a. Completes a 40-hour mediation training program approved by the Chief Judge of the Circuit Court of Lake County; and,
b. Is a member in good standing of the Illinois Bar with at least eightyears of practice or a retired judge; and,
c. Is of good moral character; and,
d. Submits an application that is approved by the Chief Judge or her/his designee; and,
e. Maintains an office in Lake County and has a substantial concentration of her/his practice in probate; and,
f. Provides satisfactory proof of professional liability insurance covering the mediation process to the Probate Judge.
3. Continuing Legal Education. An approved mediator shall attend ten (10) hours of continuing education every two (2) years on subjects related to probate, trusts, guardianships, taxation or other areas relevant to practice in probate. The mediator shall be responsible to provide proof of attendance by way of affidavit, of the specific course, seminar, or class attended to the Probate Judge at least thirty (30) days prior to her/his two-year anniversary date of certification.
4. Mediator General Standards. In each case, the mediator shall comply with such general standards as may, from time to time, be established and promulgated in writing by the Chief Judge of the Circuit Court of Lake County.
5. Decertification of Mediators. The eligibility of each mediator to retain the status of a certified mediator shall be periodically reviewed by the Chief Judge and in any even no longer than three (3) years after date of appointment. Failure to adhere to this general order governing mediation or the general standards provided for above may result in the decertification of the mediator by the Chief Judge or her/his designee.
6. Special Programs. From time to time, mediators may be required to attend specific trainings offered or sponsored by the Nineteenth Judicial Circuit, the Bar Association or other individuals or organizations.
7. Low Income Cases. Each calendar year, a mediator shall mediate two low-income cases, as identified by the probate court, at a reduced fee.
I. Compensation of the Mediator.
1. Hourly Fee. The mediator shall charge an hourly fee to the parties, which they shall pay in equal shares unless the parties otherwise agree or the court orders a different payment distribution. This hourly fee shall be paid to the mediator at the time of each session for the time spent in mediation at the session.
2. Advance. In addition to the hourly fee, the mediator may request an advance deposit covering up to two hours time to be paid at the first session which shall be due simultaneously with the Mediation Summary. Such deposit may be applied to services rendered by the mediator outside of the mediation session, such as telephone conferences, correspondence, consultation with attorneys or other individuals, preparation of the Mediator Report and any other work performed by the mediator on the behalf of the parties.
3. Additional Fees. Any additional fees that exceed the deposit or the fees collected at the time of sessions for services rendered by the mediator shall be paid as required by the mediator.
4. Suspension of Mediation. In the event payments are not made as required under this rule or otherwise agreed to by the mediator and the parties, the mediation process may be suspended by the mediator pending compliance.
5. Expense of Administration. Any fees charged to an estate shall be deemed an expense of administration.
6. Pro Bono Cases. If any party has been granted leave to sue or defend as an indigent person pursuant to Supreme Court Rule 298, the probate judge shall appoint a mediator who shall serve pro bono as to that party. Any such appointment shall be credited toward the obligation under 14.28 H 7, unless the indigent party receives an award sufficient, as determined by the probate court, to pay the mediator’s fee.
J. Immunity. Mediators shall be entitled to such immunity as shall be provided by law.
K. Mechanism for Reporting. The Clerk of the Court shall keep and maintain compiled statistics and records on all cases referred to mediation; and shall file reports with the Administrative Office of the Illinois Courts, as directed by the Chief Judge.
L. Appointment of Supervising Judge for Mediation of Probate Cases. The Chief Judge or his designee of the Circuit Court of Lake County may appoint a judge or judges of the Circuit Court of Lake County to act as Supervising Judge for Mediation of Probate Cases, who shall serve at the pleasure of the Chief Judge. In the absence of the appointment of a Supervising Judge for Mediation of Probate Cases, the Presiding Judge of the Civil Division shall be assigned the responsibility.
M. Duties of Probate Judge. The duties of the Supervising Judge for Mediation of Probate Cases shall include the following:
1. Approve or appoint the mediator.
2. Hear motions to interpret all mediation rules.
3. Hear motions to disqualify a mediator.
4. Hear motions to advance, postpone or defer a mediation conference.
5. Hear all motions or petitions regarding the mediator’s compensation.
N. Authority of the Court. Nothing in this rule shall limit the Court’s authority to enter any order it deems appropriate on its own motion or any party’s motion.
||Amended by the Circuit|
Judges of the Nineteenth
Judicial Circuit this 17th
day of October, 2011 and
Return to the Court Rules - Table of Contents