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In re Estate of Burmeister

Court of Appeals of Illinois, First District, Sixth Division

May 31, 2013

In re ESTATE OF BARBARA BURMEISTER, Deceased.

Appeal from the Circuit Court of Cook County. No. 09 P 6445, Honorable Susan M. Coleman, Judge Presiding.

Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.

OPINION

GORDON, JUSTICE

¶ 1 At the time she passed away, decedent Barbara Burmeister had transferred all of her assets into an inter vivos trust (trust), with the exception of a parcel of real property located in Ontario, Canada. Decedent executed a will before she passed away, devising all of her property into a trust. Decedent is survived by three of her four adult children, Kristina Heinzen (Kristina), Wendy Pink (Wendy), and Neil Burmeister (Neil), who are beneficiaries of the trust. At the time decedent passed away, her fourth adult child, Eric Burmeister (Eric), was alive and was also a beneficiary of the trust. However, he passed away during the course of the probate proceedings and left no heirs other than his siblings. Pursuant to a codicil to decedent's will dated May 15, 2007, Kristina was appointed executor of decedent's estate and also succeeded the decedent as trustee of the trust.

¶ 2 During the course of Kristina's administration of decedent's estate, Wendy, Neil, and Eric filed numerous petitions and motions seeking to compel Kristina, as executor, to perform specific actions or to impose sanctions against Kristina, including a petition to compel Kristina to make a distribution of assets, which is the subject of this appeal. Kristina argues that the estate had no assets to distribute. She further argues that the probate division lacked personal jurisdiction over her as trustee of the trust and lacked subject matter jurisdiction over the trust because she was never made a party to the probate proceedings. The probate judge ruled that there was jurisdiction over her in her capacity as trustee and over the trust and ordered Kristina to make partial distributions to the beneficiaries of the trust. Kristina appeals, and we affirm.

¶ 3 BACKGROUND

¶ 4 I. The Will and the Trust

¶ 5 As noted, decedent was survived by four adult children: Kristina Heinzen, Wendy Pink, Neil Burmesiter, and Eric Burmeister. Eric passed away during the course of the proceedings below.

¶ 6 On December 27, 2000, decedent executed an inter vivos trust and appointed herself as trustee. The purpose of the trust was to "provide for all [decedent's] children, including any born or adopted in the future."

¶ 7 On the same day, the decedent executed a will devising all of her property into the trust, to be administered according to its terms. The will provided that her "executor may distribute directly to any beneficiary under [the trust] any property that, if distributed to the trustee, would then be distributed to the beneficiary."

¶ 8 After executing the trust and the will, decedent transferred all of her assets into the trust except a parcel of real property located in Ontario, Canada (Canadian property). Decedent's attorney had previously contacted Larry Douglas, a Canadian lawyer, to determine how to transfer the Canadian property into the trust under Canadian law. Douglas advised that the Canadian Land Titles Act does not recognize interests in trust, and if title to the Canadian property was transferred to a trust, or if decedent were to pass away, the "title must be dealt with in such a way that [decedent] or her estate representative transfers title as opposed to the trust assigning *** title. In effect the title is transferred as if [decedent] held title personally without the recognition of the trust." Decedent's attorney further advised decedent that transferring the title of the Canadian property to the trust would not accomplish the avoidance of probate, and therefore, decedent did not transfer the title of the Canadian property into the trust.

¶ 9 Decedent passed away on August 26, 2009. Pursuant to a codicil to her will dated May 4, 2007, Kristina was appointed as executor of the will and petitioned the probate division to probate decedent's will and to be appointed independent executor of decedent's estate. On November 10, 2009, the probate division entered an order admitting decedent's will to probate and issuing letters of office to Kristina as independent executor. None of decedent's remaining children filed a timely petition to contest the will and no objection was made to Kristina's petition to be appointed independent executor. In addition, Kristina succeeded decedent as trustee of the trust.

ΒΆ 10 In the original will, decedent named Wendy as her executor, but the May 15, 2007, codicil changed her executor to Kristina. The trust instrument provides that Wendy would succeed decedent as trustee. The record does not disclose any documentation reflecting decedent's intent to change her intended successor trustee to Kristina. However, none of the parties dispute that Kristina was decedent's intended successor trustee, and all parties, throughout the entirety of the proceedings, conducted themselves as if Kristina is the current trustee of the trust. The record makes reference to an amendment ...


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