Taxation & Estate Planning

Amending Probate Papers

By Joel A. Schoenmeyer

Sometimes you file papers to open an estate, and then new information appears. Consider a recent case I had -- decedent left four adult children, but the executor (decedent's daughter) was unsure whether decedent had also adopted three other minor children (her wards) prior to her death.

We opened the estate, listing the adult children but not the minors. Later we learned that the minors had indeed been adopted by the decedent. Now what?

To fix this scenario, I prepared and presented to the court a number of documents, including:

1. A Petition to Admit Will with respect to Omitted or Unnotified Person: Under Illinois law, you have to give certain notice to heirs once an estate is opened. This notice must be given within 14 days of the entry of the initial order admitting the Will to probate. Obviously, since we didn't know about these "new" heirs, we didn't do that. We therefore had to file this petition (available as a PDF here), and I must now give notice to the minor children.

2. A Petition to Amend Heirship: The judge previously decided the decedent's heirship based on the executor's affidavit. This affidavit was incorrect, so I also petitioned the court to allow us to file a NEW affidavit of heirship, and to add the three minors as heirs. The previously-entered order declaring heirship was thrown out, and the new order (showing all 7 children) was entered.

It's unlikely that you'll encounter a situation exactly like this one, but most attorneys WILL encounter a situation where a change needs to be made to previously-filed probate documents. The key is to present the judge with all of the relevant facts, so that he or she can help you work through a solution.

Full post as published by Death and Taxes Blog on May 22, 2008 (boomark / email).