Ear on Chicago; The Importance of Wills and Probate: Probate Court

This is the story of the Cook County probate court where all wills and estates are handled. We will go now to the Cook County building in downtown Chicago. We're standing on the 6th floor of the County building on Clark Street in downtown Chicago in the probate court. Actually we're standing over by a counter where we're going to file a will and presently to do the story of the probate court. I think the best way to do it is to take an actual will, which we're going to devise ourselves and present it to the probate court for processing. First of all, however, I'd like to talk a little bit about the probate court to the attorney for the probate court, Tony Cogut. Tony, how did the probate court come into being? Well, the probate court is always actually the function of the probate court is always has been in being the administration of it and the processing of the estates has changed somewhat in the last couple of centuries. The estates are administered primarily at what we call common law. It's been changed by statute

considerably in so far as next of kin are concerned. Under the old English common law estates left would be given to the oldest son, that is now changed by statute, which provides that the next of kin share equally. It also provides that in the event a person wishes to leave his property or assets, other than in which the law prescribes he must execute a will and it must be executed in conformity with the provisions and the requirements of our law. So we finally reached the stage where we have the probate court processing all these wills and estates. In other words, years ago they used to just automatically leave the entire estate, all assets, real estate and personal property to the oldest son. That's correct. It wasn't a matter of choice. It was an operation of law. The oldest son inherited. This is probably a better way. Well, now Tony, I'll tell you what we wanted to do as I mentioned at the very opening of the program is to file a will.

Now I'm going to assume the position of filing the will and I will be John Doe for just a little while. I'm going to assume that my father Richard Doe has passed away just recently and left the following will. He has written it on a piece of personal stationery and it's as follows. I Richard Doe of the city of Chicago, being of sound, mind and body, do hereby make, publish and declare this to be my last will and testament. I give all of my property, real estate and personal, to my son John Doe, signed Richard Doe and Tony, there are two witnesses, John Jones and Mary Brown. Now we're going to add one complication to this will so that we won't get too complicated. We're going to only have one complication at the moment and that's going to be the fact that I have one sister, the only other heir and her name is Jane Doe. She has been left out of my father's will and later on we'll have her contested so that we can point out some of the

problems of the probate court. Now I bring this will into the probate court. What happens? Well the first step is finding it with our will court. Well that's Mike Nevin and Mike is standing right in front of me. Mike I have here before me a will that you just heard me raid and I'd like to ask you what is the procedure that I must go through to file this will. The will is filed, the name of the party filing the will, the number of pages, the date. Now then the wills are carried over on a master ledger, alphabetically, and they are sent down to be photostated immediately. All right then Mike we have this will entered in the day book and in the master book and we'll assume now that it's been photostated. Now what happens after that? They are kept here in a cabinet until the estate is opened. Some wills stay filed. They are not probated.

The others are sending to the two courtrooms to be approved. Well this particular court or this particular will be probated, will it not? Yes sir. All right then. Thanks a million Mike. Let's get back over here to Tony. Tony, Mike is telling us that this will is kept here in file until the estate is opened. Now explain just exactly what he means by opening in a state. Well by opening in a state a petition is filed by a generally a next of kin or the executor that is named in the will. Where any state gives all the pertinent information to the court on a form which we have here available to the general public and to the practicing attorneys. They list the approximate value of the estate, the next of kin. Is this the petition you have right in front of you? That's correct. This is what we call a petition for admission of Willa probate. All right. Now we have this petition filled out or we'll assume that we have it filled out. What happens to it then? You file it again? That's can all. That is filed now with our court here. What it when it contains all the pertinent information. We at the counter here give it a file number, a

docket number and a page number. And that's our record that we keep. That is presented here. A fee is paid, a nominal fee is paid. And then it is taken in before one of the assistant judges where the will is established rather as to its validity. Well then that's our next step to go before one of the judges and establish this, uh, make this Will valid. That's correct. Not to make it valid but to establish the fact that it is a valid Will and properly executed under the provisions of our law. All right. Let's go into the court then and talk to that judge. We are now in the courtroom of Judge James S. Montana where we're going to prove airship. That is, who are the heirs of my father, Richard Doe? I am still taking the place of John Doe and Tony who has taken a place of my attorney is here in the courtroom with me during this procedure. So the next steps that you will hear then are the actual courtroom procedure as if this were a real will being entered here. Mr. Clerk, will you please call the next case? The estate of Richard Doe. Will the witnesses please step up before

the bench? I have to cart please. I present the petition of John Doe to establish the airship of Richard Doe deceased. Call your first witness, please. Can you step up here, please, and be sworn? Please raise your right hand. Do you sound me swear by the ever -living God? The testimony are about to give me the truth, the whole truth, and nothing but the truth. Will the witness please step up and sit beside me? What is your name, sir? John Doe. Where do you live? 45 -20 North Laporte Avenue here in Chicago. What relation are you of Richard Doe? Son. Did he die in Chicago, Illinois? Yes. Did he die on August the 15th and 1956? That's right. How old was he when he died? 62. How many times was he married? Once. What was the name of his wife? Mary. Did Mary die before your father Richard Doe? Yes, she did. How many children were born to Richard Doe and his wife, Mary? Two. One of them

is yourself, that right? That's right. Are you over 21 years of age? Yes, sir. Are you married? No. Were you ever married? No. Name the other child born to your father and mother? Jane Doe. Is she living? Yes. She over 18 years of age? Yes. Is she married? No, she is not. Was she ever married? No. Did she live with your father in the same household as his daughter until the day your father died? No. Were there only two children born to your father and mother? That's right. Did your father and mother adopt any children? No, they did not. Now, counsel and Mr. Doe, I am setting the hearing of the proof of the will for October 10, 1956 at 10 a .m. before me in this courtroom. You will have to furnish us with three copies of this petition. We will, through Mr. Corson's office, serve a copy upon your sister Jane Doe at Gillespie, Illinois. On October 10, 1956 at 10 a .m., your sister Jane Doe will have an opportunity to appear before me or any other judge assigned to this court to present her side of the case and to contest the will if she so

chooses. Therefore, when you please leave three carbon copies with us so that we can mail a copy to Jane Doe your sister. The hearing on this proof of will is set for October 10, 1956 at 10 a .m. That is all for you, Mr. Doe. Tony, does that mean that you and I have to come back here to Judge Montana's courtroom on October 10, then? That's correct. We will have to appear at on that date and at that time with our witnesses to establish the validity of the will and its proper execution. And my sister may come up here to contest it. That's right. She's given that opportunity. Under the law, she has the right to contest it if she showed so desires. We assume now that we are on the date of October the 10th and we are now in the courtroom of Judge James S. Montana once again to prove the validity of the will and to prove up the will. So you will hear that procedure as it goes now. Council, what is the name of your case? All right, this is the estate of Richard Doe. We are here this morning for the purpose of establishing the validity of his will. The witness is our present ready to testify. Will the witnesses please stand up and be sworn, please?

Raise your right hand. Do you, and each of you, soundly, swear by the ever -liberating odd. The testimony are about to give it to be the truth, the whole truth, and nothing but the truth. Council, would you please have your first witness take the witness stand. What is your name, Mr. Witness? John Jones. And where do you live? 61 -41 North Laman, Chicago. Yes. Did you know my name Richard Doe while he was living? I did. I am now showing you an instrument, purported to be his last will and testament, and ask you if it bears your name and signature. It does. Who asked you to sign this document? Mr. Doe. Mr. Richard Doe, the testator? Yes, sir. Did he say he was signing this last will and testament? He did. Did he ask you to be a witness to as well? He did. Did you see him sign it? He did. Did he see you sign it? He did. Wasn't signed by him and by you on the dated bears July 10th in 1955? It was. How old was he at that time? 61. After he signed this

document, did he ever marry again? He did not. After he signed this document, did he ever have or adopt any children? He did not. Did you believe him to be of sound mind and disposing memory when he signed? I did. Did you believe him to be of sound mind and disposing memory when you signed your name as a witness? I did. Who was present when he signed? The deceased, myself and Mary Brown. Were the same people present when you signed your name as a witness? They were. Now, when you look at this instrument again, please, and tell the court if it is in the same condition today as it was on the date that you and Richard Doe signed it. It is. Did you see Mary Brown signed this document? I did. Did she see you signed the document? She did. Where did this take place? Mr. Doe's office. Mr. Richard Doe's office? Yes. Next witness, please. At this point, the judge asks the same question to the second witness, Mary Brown. After that is concluded, the judge is ready to ask if Jane Doe, the second heir to the will, is in court.

Now, our counsel, Mr. Bernard Corson, our clerk, has served notice upon Jane Doe. And in the notice, she has been notified that the hearing on this will was set for this morning. Have you seen Jane Doe? Is she present in court today? No. We received no communication from Mr. Doe nor is she present in court this morning. The files of our office show that we have duly served a copy of this petition upon Jane Doe by regular mail. The clerk has so certified. In view of the fact that there are no contestants' presence, a present, and in view of the fact that Jane Doe is not present, the court has no alternative but to admit the will to probate. The court finds that the will was properly executed and the court finds that the witnesses have substantiated the valid execution of the will. Therefore, the will is admitted to probate. The will provides that Jane Doe, his son, is to be appointed executor. The court does hereby appoint Jane Doe

executor. The will further provides that Jane Doe may act as executor upon his own individual surely bound without executing a professional surely bound. Therefore, the court approves the individual bound of Jane Doe in the amount of $40 ,000, which is twice the amount of the estimate of the personal property in the estate. Letters' testimony are therefore hereby issued to Jane Doe. This closes the hearing at this time. Now let me explain that that was not an actual case. Obviously, we took the name of Jane Doe and Richard Doe for purposes of the program to describe to you how a will is probated. Now, we'd like to interview Judge Montana just briefly on a couple of other issues. We said earlier in our program, Judge, that perhaps Jane Doe might want to contest. Now, we, to simplify the matter, we did not bring her to court today. Now, what if

she did come to court with a lawyer and want to contest? What would she do? If Jane Doe appeared in person, she would have the same rights that she would have if she appeared with an attorney. Of course, if she appeared with an attorney, the attorney would naturally be more adept at attempting to contest the will. In our probated court, a contestant would have a right to show one of four elements or grounds to convince the court that the will was invalid. Judge, this particular will was, we assume that it was written out on a piece of personal stationery of Richard Doe. I imagine that wills are brought in like this once in a while, are they not? It is not uncommon. In this court, we have had wills in the past, which have been executed on back ends of cigar match boxes. We also had a will at one time executed on the face of a door and it became necessary to cut out a piece of the door to bring it to

court. Is that right? How about the napkin incident? Just recently, about a month ago, we had a will which disposed and devised approximately $200 ,000 worth of property, which was written by the testator in long hand, all in his own handwriting, in a popular north side restaurant. The manager and the owner and one of the waiters were the witnesses to the will. The lawyer brought in the napkin and, except for the form, except for the substance of the napkin, all the other items and writing were legible, and the court admitted the will of probate. And it was valid? It was valid. It was complete. It had a date in the name of the parties and showed a testamentary disposition. It showed that the man appreciated and knew who his relatives were, and it was in valid order and in proper form. Well, Judge Montana, we want to thank you very much for taking time out from a

busy schedule in order to help us provide the people of Chicago with more information in regard to the probate court. I'm sure you're welcome. And Judge Dunin, Mr. Corson, our clerk, would be glad to cooperate in any way that we can. Thank you. We are now in the courtroom of Judge Robert Jerome Dunn, who is the probate judge of Cook County. This morning, there is a probate court of Cook County claim docket being called, and among those is my will or my estate, and the undertaker is actually making a claim against the will. We're assuming that he is against the will of Richard Doe, and he is claiming a certain amount of money for funeral expenses. So you'll hear that procedure right now. The State of Richard Doe claim of person undertakers. Anybody representing the estate or the claimant here? I represent your state, Your Honor. You represent person undertaker? I represent

person undertaker. Have you checked this claim? The claim has been examined, and we filed an objection to it, and consent to it has been allowed. I'll allow the claim, the market first class claim, being funeral expenses in the last illness and burial. For matters of simplicity, we have allowed the claim. The funeral expenses have been okayed by Judge Dunn. Now, I want to ask Judge Dunn just a couple of questions, and I'll assume my role of narrator instead of John Doe. Judge Dunn, what if I wanted to contest that claim by that undertaker? What would I do? Your attorney would suggest to me that they wish to contest the claim as being unreasonable. At that time, I would refer to one of my assistants, Judge Kowalski, who will hear the claim. I'll do that at the present time, if you wish, send it in there, and you may go in for the purposes of this hearing we're having today. So I'll assign the claim, the person undertaker, to Judge Kowalski to be heard as a contested claim, although you have allowed it already, you wish to go in there anyways, make formal proof. Yes, for purposes of our program,

we'll do that now, and go in and talk to Judge Kowalski. As a matter of fact, he's standing right here, and instead of getting complicated about it, we'll just ask him. Judge Kowalski, you've probably heard what went before Judge Dunn here. Now, I'm going before your courtroom. What would John Doe do in this case? Well, John Doe would have the burden here of proving the particular claim as to its reasonableness and as to its accuracy. Are you speaking of John Doe here? I'm not speaking of John Doe. I'm speaking of John Doe as I am the executor of the estate, and I want to contest that funeral expense. Then the funeral undertaker, through his attorney, would appear in court, and would be his burden to prove that that particular claim was reasonable, and that the expenditure had been rightfully made, and once he had sustained that particular burden, that it would be your privilege to show reasons why that particular claim should not be paid, and that, normally, of course, would be done through your attorney. And what if I proved that? What would happen? If you proved that the claim was unreasonably relatively speaking in the light of the amount of your estate, the

court would have the authority then to cut that claim to a reasonable amount. I see. Or if you, on the other hand, if you proved that the undertaker did not render the service, or that the amount of the claim, the total amount of the claim was unfair, that it was not authorized, and the court could disallow in its entirety, or cut it to a reasonable amount. And if the undertaker proved, on the other hand, that his claim was accurate, then you would have to make me pay it. Yes. The procedure in proving a claim is the procedure that would be adopted in connection with any suit in any court, and if the individual who's claiming sustains the burden of proof, then the claim would be allowed in its full amount. This, of course, is the same procedure used to claim against a state by any creditor. It could be the undertaker. It could be a clothing manufacturer who sold the Richard Doe a suit of clothes or anything else. Judge Kowalski, thank you very much, sir, and thank you, Judge Dunn. Tony, back to this will that we're processing here. What happens next? Well,

your next step now is to collect and determine just what assets to wear in the estate of John Richard Doe. Those are, again, we have to compile and submit to the court in writing, specifying exactly what those assets are. And who do we present that to? That is presented by what we call an inventory and is presented before Judge Bates, one of the assistant judges at a probate court. Well, Judge Bates is sitting right next to us over here, so I'm going to ask him a simple question. Judge Bates, just what is an inventory? An inventory is a list of all property, both rail and personal, that belongs to an estate, and has come to the knowledge of an executor, administrator, to collect, guardian, our conservator of an estate. The inventory should be verified and filed within 60 days after date of letters of our appointment. The inventory should describe the rail estate by legal description and street number, if possible. Give derivation of title, state whether improved or unimproved,

whether it is encumbered or unencumbered, and if encumbered, fully described the incumbrance. Under personal estate should be listed the cash and stocks and bonds, designating each item other than cash and goods and channels as good, doubtful, or desperate. The inventory should be presented to the court for approval, and if approved, filed for record with the clerk. I might add that a surviving partner is directed by law to file an inventory of the partnership estate within 60 days after the date of death of his co -partner. Thank you very much, Judge Bates. There is one thing which a lot of people listening into this program would wonder as we went through the process of the probate court, and that's whether an executor of an estate, such as John Doe in this

case, receiving $50 ,000 in real and personal property, would be able to get any money during all this period, as we described it, he wasn't able to get any money until the end of the period of nine months. Judge Dunn, what if I wanted to cash $10 ,000 worth of stocks and bonds that I had in that will? Well, you'd have to come into this court and ask permission to do so and tell me why you wanted to do it, whether it was to pay any claims or any taxes or make distribution, partial distribution, perhaps. And then what would you do? How would you investigate the reasonableness of my claim? Well, I could rely on a sworn petition filed by you and your attorney as to what was in the estate, and if I doubt the reasons for selling it was good, I'd say go ahead and sell it. And if you had $4 ,000, $5 ,000 remaining to be distributed, I'd say, well, I'll give you $4 ,000 of that to distribute, new file or funding bond to pay it back in case anything happens before the nine months run. May I ask you this one final question? Why is the probate court in such strong jurisdiction over all of these wills and estates? Why

do I have to when my father gave me all this property and money? Why do I have to continue to come back to the court to get permission to spend it? To be sure that the money that's been left by your father goes where it's supposed to go, and also to be sure that creditors of all kinds were paid, because that's what your father would like. Also, the government is interested in being supported through some taxes, inheritance taxes and so on and so forth. I don't know why you fell as get into this with business. This is the most complicated thing I've ever gotten into in my life. Well, to you, it seems complicated. To those people who are waiting for money through a state, it seems complicated, but it's not too complicated. The simplest state will all be over within nine months. I was just going to say I'd hate to be really filing this wheel. This is just for purposes of a program to describe the activity. At least your father knew where his money was going. What happened if he didn't leave a will? Yes. Well, there's another

matter. If we start into that, I don't think we'd ever get finished. I think it's the best thing how hard to file a will. Thank you very much, Judge Dunn. Now, for a final statement, I'd like to talk to the clerk of the probate court, Bernard J. Corson. Mr. Corson, we talked to Judge Dunn just briefly about handling a state of incompetence and minors. That's part of the jurisdiction of the court, too, is not. That's right, Hugh. In addition to deceased estates and that we have incompetence estates and minors, and it might be of interest to you to know that in 1955, we had 12 ,202 estates open in this court. 8 ,337 of which were deceased, 937 incompetent and 2928 minors. That represents a pretty fair yearly average, Hugh, of the total volume of business that we do in the probate court. One or two questions about the probate court, generally speaking. First of all,

your job as clerk is an elective office, is it not? That's right, Hugh. And Judge Dunn, his elective, he's the head of the judicial branch of the court, and the clerk is the head of the administrative branch. Now, we hear from time to time, Mr. Corson, about some famous cases that are brought up before the probate court. The most recent one that I can think of is the Montgomery Ward Thorn case. How many do you have? Well, of course, that was certainly an exception, but how many do you have of these contested cases that take sometimes long periods of time? Well, Hugh, it's difficult to generalize, but let me give you the figures for 1955, and 56 will be quite similar. We had a total call in the probate court of 1955 for 1955 of 5 ,043 set cases. In that number, of course, were some of the more sensational names that we read in the press, but the

sensational cases usually are made that by people that write about him, Hugh. They do entail prominent names and so forth, but the subject matter runs pretty close to the John Doe case that you have on your program here today. Now, I just want to two more questions, Mr. Corson. I understand that this probate court of Cook County is the largest such court in the United States, is that true? That's right, Hugh, and the reason for that is the jurisdictional feature. In New York, for example, you have five probate courts. They're called surrogate courts, and they have one for each burrow. But Cook County that's now approaching 5 million has but one probate court, one probate judge and one probate clerk, which makes this the largest court of its type in the country. I want to certainly a tremendous job for you and for everybody that is working in the probate court. It's been a very interesting experience for us to go through and take a will through the process of the court, and as Judge Dunn says, there's certainly much more to it than just filing a will. There's a lot more to the probate court than just that, but at least that's an interesting

part of it, and that's the one that I suppose most people come in contact with. That's right, and we certainly appreciate very much the opportunity to be on the air with you, Mr. Hill. And we feel that this type of educational program serves a useful purpose to our citizenry. So ends the story of the probate court of Cook County. This is Hugh Hill speaking.