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In re Estate of Ahmed

May 18, 2001

IN RE ESTATE OF NAYMAT AHMED, A DISABLED PERSON (THE NORTHERN TRUST COMPANY, PETITIONER-APPELLANT).


The opinion of the court was delivered by: Justice Gallagher

Not Released For Publication

IN RE ESTATE OF NAYMAT AHMED, A DISABLED PERSON (THE NORTHERN TRUST COMPANY, PETITIONER-APPELLANT).

The opinion of the court was delivered by: Justice Gallagher

Appeal from the Circuit Court of Cook County

Honorable Miriam Ellen Harrison, Judge Presiding.

 This appeal involves the trial court's denial of the request of petitioner The Northern Trust Company (Northern Trust) to transfer the contents of the guardianship estate of Naymat Ahmed, a disabled person, to a trust. On appeal, Northern Trust contends that the trial court erred in denying its petition, which was brought pursuant to section 11a-18(a-5) of the Probate Act of 1975 (the Act) (755 ILCS 5/11a-18(a-5) (West 1998)). Because we find the language of the Act to be permissive and not mandatory, we affirm the judgment of the trial court.

The record on appeal establishes the following facts. Ahmed has been severely retarded since his birth in 1976. Following a 1984 jury trial, Ahmed received a medical malpractice judgment of $8,126,711. *fn1 Those funds, which now total approximately $17 million, are in a guardianship estate supervised by Northern Trust in Chicago.

Ahmed has lived in Texas with his parents and three sisters since 1982. Ahmed's estate includes cash, common stock, municipal bonds and real estate, namely, the family's Texas home. The record indicates that prior to the present action, the trial court approved a budget of $11,000 per month for Ahmed's care, including $5,500 for nursing care and $1,200 for physical and speech therapy. Family expenses, including automobile and homeowners insurance and real estate taxes, also have been paid from the estate. In December 1998 and November 1999, the court approved Northern Trust's requests to transfer $10,000 from the guardianship estate to each of Ahmed's parents and sisters as gifts.

In November 1999, Northern Trust filed a petition requesting that it be permitted under section 11a-18(a-5) to establish a grantor trust and transfer the entire balance of Ahmed's estate to that account to allow "more flexibility in the administration of [Ahmed's] assets." Northern Trust stated that it is unlikely that Ahmed will use the entire sum of the guardianship estate during his lifetime and that proper estate planning would reduce the costs of administering the estate and would reduce federal estate taxes. Northern Trust requested that, if such a trust was established, Northern Trust be allowed as trustee to make gifts of income and principal to Ahmed's family.

At a hearing on Northern Trust's petition, the court heard testimony regarding Ahmed's daily living. *fn2 Ahmed spends most of the day in a wheelchair but can walk with the help of arm braces. He is unable to feed, bathe or dress himself. On weekdays, an assistant stays with Ahmed for about four hours to allow Ahmed's mother to shop or run errands, and a male attendant helps Ahmed shower and dress. Ahmed takes three medications to control seizures, which occur once or twice a month and include inappropriate screaming and laughing. Although not violent toward others, Ahmed sometimes bites his hand or strikes himself in the head with his hand. Ahmed seems happy most of the time but can display sudden mood swings.

Steven Rothke, a licensed clinical psychologist, testified that Ahmed's prior schooling aided in his development as much as it possibly could. He stated that continued enrichment programs would benefit Ahmed in that he would enjoy them; however, he would not likely learn new skills. Rothke said Ahmed would not benefit from being in a residential facility as opposed to living with his family.

A Northern Trust representative testified that Ahmed's estate would receive higher returns in a trust account than in a guardianship account and that Northern Trust could administer a revocable trust using part of the estate assets.

The trial court denied Northern Trust's request to transfer all of Ahmed's funds from the guardianship estate to a trust, stating that would not be consistent with the legislature's intent in passing section 11a-18(a-5) of the Act. Instead, the court authorized Northern Trust to establish a trust accessible to the family in an amount equal to the $675,000 federal estate tax exemption. The court also indicated that the $10,000 annual gifts to Ahmed's parents and sisters could continue.

The trial court made the following comments regarding Northern Trust's request to transfer the ...


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