Category Archives: Guardianship

Should Your Executor Be Your Eldest Child?


When we meet with our estate planning clients to talk about who might act for them in the event of disability or death, we talk about who their children are, good, bad and ugly. For those without children, we look at extended family and friends. Often, the client feels obligated to appoint their eldest child even if this might not be the best choice. It is so important to be honest about these things when planning for disability and death. The relationships of your family members, one to the other and to you, are so important to explore openly.”

Being an agent under power of attorney, an executor, or a trustee is a JOB. Ask anyone who had acted in this capacity for another person. We have had clients tell us that they had no idea how big of a job handling another person’s money was until they had to DO it. They say that, if they had known in advance how hard of a job it was, they might have declined to act! Add on top of it that it is often a THANKLESS job. No one who has not acted in such a position can really understand it.

So, who in your family would be an ideal candidate for such a position? Ask yourself these questions:

1. Who has the time to do this? Do not pick someone who works 90 hour weeks!

2. Who will give prompt attention to the job? Pick someone who will put first things first. Do not pick a procrastinator!

3. Who has the experience to know when to rely upon themselves and when to rely upon others? Do not pick the know it all. Pick someone who knows their own limitations and knows when to seek expert advice.

4. Who has honesty and integrity? Pick someone you believe will not treat your money like their own. Anyone who you have any doubt about in this regard should be avoided. They will only get themselves into a whole lot of trouble.

5. Who has your philosophy about money? Pick someone whose thinking regarding money and its’ appropriate use is in line with yours.

6. Who is firm but fair? Pick someone who has the strength to do what is right, even in the face of opposition, someone who will treat all your beneficiaries with loyalty and fairness. People do not change, if they fought as children, it is likely they will fight as adults.

7. Is your eldest child really the one who is best suited to be your executor based upon the above questions? Do not pick your eldest child, just because they are your eldest child, if they do not have the above qualities.

If no one in your family fits the bill, we recommend using a corporate fiduciary (a bank or a trust company that will efficiently, professionally and unemotionally handle finances for you and your family). Yes. There will be costs associated with that, but maintaining family harmony (and avoiding costs of litigation if things go wrong) are well worth it. We have seen too many families be destroyed by money issues! Do not let this be your family.

Please take action today to explore these issues and make tough choices for yourself and your family.

By: Julie A. Kolodziej

MLG – Matlin Law Group, P.C.

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In re Estate of Marion Young Tait 2017 IL App (3d) 150834


In the recently decided appellate case, In re Estate of Marion Young Tait, the third district of the Appellate Court of Illinois was faced with a trial court that removed a guardian of a disabled person without substantially complying with the codified procedure in section 23-3 of the Probate Act of 1975. (755 ILCS 5/23-2 (West 2014).[1]

The guardian of the estate, the disabled person’s daughter, appeared to have some trouble filing an annual report and annual accounting report.  The guardian ad litem objected to the annual accounting reports and requested a pre-trial conference to discuss those reports. The pre-trial conference took place the same day that the guardian ad litem made the request, which occurred at the hearing for approval of the accounting reports.

At the pre-trial conference, the Judge determined that the daughter should be removed as guardian of the estate.  No evidence was provided showing that the daughter was given the opportunity to participate in the hearing.

On appeal, the appellate court determined that the trial court must “substantially comply” with the procedure set forth in 23-3 of the Probate Act.  The procedure requires the issuance of a “citation to remove” directing the guardian to show why she should not be removed as guardian of the estate. This hearing on the citation to remove must be fair, which at minimum requires reasonable notice of the hearing and a fair opportunity for the guardian to defend against removal.

The appellate court determined that the court did not provide proper notice of the hearing (since the hearing on removal appears to have been spontaneous) and the guardian was not given the opportunity to respond since no evidence is on record demonstrating that she was permitted to participate in the hearing.

The appellate court ruled that the trial court did not substantially comply with 23-3 of the Probate Act and remanded the matter to the trial court for a removal hearing.

[1] http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/3rdDistrict/3150834.pdf

If you have any questions regarding guardianships, please contact Matlin Law Group, P.C. at 1-847-770-6600.

Michael A. Goldberg

Michael A Goldberg

 A blog article by Michael A. Goldberg ©2017. Michael is an Attorney at Matlin Law Group, P.C. Please feel free to contact Michael Goldberg regarding this or any other matter. Phone number 1-847-770-6600.

Disclaimer – The content of this article is not intended to be legal advice and does not create an attorney client relationship with the person reading it.