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Ernie Banks Estate, Part 4: Citations to Discover and Recover

Ernie Banks Card

Cubs legend Ernie Banks died nearly 4 months ago, but his estate continues to make headlines as new facts and twists trickle out in the legal wrangling between his caretaker and his family. The ultimate battle has yet to begin — a will contest has not yet even been filed — but the battle over information is in full swing.

Before I slide into the latest news and today’s probate lesson on citations, you can get caught up to speed with the first 3 parts in this series:

The biggest development since last month’s update comes from a probate hearing held on April 29. The hearing was scheduled as the return date for separate citations to discover assets filed by the executor, Regina Rice, and by Ernie’s surviving wife, Elizabeth Banks.

As reported by the Chicago Tribune, the attorney for Elizabeth Banks told the probate judge that Rice has failed to turn over certain key financial information. Specifically, Ms. Banks is seeking information about a joint bank account (held with Rice), assets held in a separate trust, and Banks memorabilia sold recently through a website that Rice controls. Judge Riley gave the parties a few weeks to try to work it out and set status hearing for May 29.

The joint account and trust assets are not disclosed on the probate Inventory that was filed by Rice on April 27 (copy of filed Inventory provided at link — more on this later). Readers of my ‘Probate vs. Non-Probate Property‘ column will understand that these items would not be listed on the probate inventory because they are not probate property — at least not yet. But as discussed below, citations can be used as a mechanism to try to pull apparent non-probate property into the probate estate. This leads to today’s main topics: (1) Citations to Discover Assets; and (2) Citations to Recover Assets. Both are governed by Article XVI of the Illinois Probate Act.

Citation to Discover Assets

In the probate context, a citation to discover assets is akin to discovery in litigation — it is a means to obtain information. Ordinarily, it is the representative who asserts that some person may have information that may be needed to discover and then recover property for the estate. But it can also be an heir (and in the case of Elizabeth Banks, a potential beneficiary) who seeks to discover possible estate assets.

Once properly filed and served on the respondent, the citation will be issued. As retired Cook County Judge Jeffrey Malak would tell attorneys considering objecting to the issuance of a discovery citation — it is a “total fishing expedition” and it is allowed.

Most discovery citations are handled privately in an attorney’s office or otherwise through the voluntary production of documents, although the statute does permit the judge to hold a hearing. As noted, Judge Riley asked the parties to try to work out their differences and then report back if there is any remaining disagreement.

In many situations, the discovery citation is just a prelude to a citation to recover assets.

Citation to Recover Assets

Once the citation to discover assets is concluded, the petitioner may seek to convert the citation to discover into a citation to recover assets. The difference is evident in the name: the former involves discovering assets, the latter involves recovering those assets. A citation to recover assets is a mechanism to bring assets into an estate. In many cases, the procedure is used to adjudicate title and ownership to property — to determine the true owner of disputed property.

As noted in my last post, Regina Rice, as executor, filed a Citation to Discover Assets against Elizabeth Banks inquiring into personal property (e.g. memorabilia) that Elizabeth retained in California after Ernie moved out of the couple’s home in 2012. Through the discovery citation, Rice should learn what Ernie left in California in Elizabeth’s possession. Rice will then likely demand that Ms. Banks hand those items over to Rice for her to administer as executor of the estate. Should Elizabeth refuse to turn over the property, Rice would then likely convert the discovery citation into a recovery citation against Elizabeth in order to obtain possession (although perhaps this could be negated by a spouse’s award  ‘selection’ — a topic for a future blog). Hypothetically, Elizabeth might refuse to turn over the memorabilia on the grounds that Ernie had actually gifted it to her during his life and that she is therefore the true owner. Whether or not a completed gift had been made is the type of title dispute that the probate judge can adjudicate through the recovery citation.

Elizabeth’s discovery citation also included questions over a joint bank account that Ernie Banks apparently held with Regina Rice. Disputes over joint bank accounts are probably the most common type of litigated recovery citation. In the typical case, the issue is whether the decedent added the joint tenant for convenience purposes only, or whether the decedent intended for the joint tenant to inherit the account after death. In the Banks case, perhaps in addition to a convenience claim, the dispute over the joint account may be similar to the will contest issue over whether Rice was a fiduciary who asserted undue influence.

In most cases, a citation to recover assets involves bringing assets into an estate, though the Probate Act also allows for the opposite remedy. That is, an individual may file a citation against an executor who is holding property that the individual claims rightfully belongs to them. This is more rare, and is commonly referred to as a “reverse citation.”

More Developments in the Banks Estate

1. Three more claims filed.  I discussed creditor claims in some depth in last month’s post. At that point, just two claims had been filed against the estate (by the funeral home and by a divorce attorney) and both were subsequently dismissed. I noted that the deadline for filing claims was still open and that more claims could still be filed. Sure enough, over the last several weeks three more claims have been filed — all by different law firms involved with the (never completed) Banks divorce proceedings.

On April 9, Grund & Leavitt, P.C. filed a claim in excess of $27,000 for unpaid attorney fees incurred by Ernie Banks.

On April 24, the Law Offices of Jeffrey M. Leving also filed a claim for unpaid attorneys fees incurred by Ernie Banks, also just in excess of $27,000. Leving was Ernie’s initial divorce attorney when those proceedings were initiated on June 4, 2012.

Finally, on April 27, Barry H. Greenburg filed a claim in excess of $11,000 for unpaid attorney fees — incurred by Elizabeth Banks. In Greenburg’s filing, he claims that Elizabeth does not have the resources to satisfy the claim and that her husband’s estate should be responsible for his outstanding fees.

These attorney fee petitions were first filed within the marital dissolution case. Should the judge in that division approve and allocate fees against Ernie Banks, the probate judge would likely approve the claims, subject to the sufficiency of assets in the probate estate to ultimately satisfy those claims. The initial probate claims call on all three claims is set for May 26.

More claims may still be filed. The claims period remains open until mid-August (6 month from first publication date).

2. Inventory filed.  On April 27, Regina Rice filed the probate estate’s initial Inventory. The Inventory lists more than 100 category items, all in the nature of tangible personal property. The items include Banks’ Hall of Fame ring and Presidential Medal of Freedom. Also included is a 2007 Lexus that Rice requested, and was granted, leave from the court to sell. Again, the Inventory does not include non-probate assets — financial assets such as joint and trust accounts — that may be significantly more valuable.

3. Prior 2008 Will.  The Will that was admitted to probate was signed on October 17, 2014. A review of the clerk’s ‘Probate Will Search‘ reveals that a prior will was filed on February 17 (by estate counsel Linda Chatman), which I have reviewed. This second Will was signed on December 8, 2008. Similar to the 2014 Will, the 2008 Will also names Regina Rice as executor and leaves the estate to a separate trust (dated 12/08/08).

What’s not known though is how the terms of that 2008 Trust may differ from the terms of the 2014 Trust (though it appears that the 2008 and 2014 documents were drafted by different attorneys). Unlike the 2014 Will, which included a specific provision regarding the exclusion of Banks’ children, the 2008 Will does not contain such a provision. In any case, the 2008 Will and the terms of the related Trust could be critical. Should the 2014 Will (and Trust) be successfully contested, the 2008 Will (and Trust) would then become the operative estate documents.

4. Ernie’s children.  In my first post back in February, I noted that in 2008 Elizabeth and Ernie Banks (at age 77) reportedly adopted an infant girl (per Wikipedia and this 2009 NPR interview and here). Apparently, these media sources were incorrect. The initial probate affidavit of heirship actually did include Alyna Olivia Banks, but in a subsequent amended heirship it was noted that she had been adopted solely by Elizabeth. Ernie had three children: Joey, Jerry and Jan.

I plan to continue to cover this case on the blog, along with various aspects of the probate process involved, on a monthly (or so) basis. Also, please feel free to follow me on twitter @JeffGottliebLaw, where I will share and link to developments on a more frequent basis. I also share other articles and practice-related updates and news on my twitter feed as well.

Go Cubs!

Image courtesy of Flickr/Baseball Collection