Taxation & Estate Planning

Citations in Probate: Discharging and Amending

By Joel A. Schoenmeyer

I've talked previously about citations in the probate context (here is an introduction). These actions are usually brought by the personal representative, to find out about (and, if successful, re-acquire) property held by a third party that rightfully belongs to the estate. There are two different types of citations:

-citation to discover information (like a discovery deposition, but much broader in scope; Judge Malak, who I cite below, states that "a citation to discover... is a total 'fishing expedition'")

-citation to recover assets (you ask the court to rule on who owns certain property)

Usually you file your citation to discover, and then, using the information you have gleaned from that citation, you file your citation to recover. But HOW you file your citation to recover is important. Here's Cook County Probate Court Judge Jeffrey Malak's take (this is from his chapter in IICLE's Litigating Disputed Estates, Trusts, Guardianships, and Charitable Bequests, available for sale here):

The proper order to be entered upon completion of a citation to discover... is that the citation is discharged. If the petitioner is in position to file an amended petition to recover assets, leave to do so may be granted at the time of such discharge. If the petitioner is not in a position to amend to a recovery citation, he or she may request that at a later time, but new service will be necessary. (Emphasis added)

I've placed those last five words in bold because they're important. It's a pain in the butt to serve the respondent in a citation action. You have to do it with the citation to discover, so why do it again? When you go in to discharge the citation to discover, do what Judge Malak indicates, and go in with a motion for leave to amend the citation to discover and turn it into a citation to recover. Then you won't need to serve the respondent a second time. (One more cite: amending a citation to discover -- to turn it into a citation to recover -- is specifically allowed under the Estate of Chernyk case, 485 N.E.2d 1169 (1st Dist. 1985).)

Full post as published by Death and Taxes Blog on July 07, 2009 (boomark / email).