The Illinois Appellate Court recently decided a case that emphasized the importance of beneficiary designations on retirement accounts in connection with a divorce.  The decision affirms that in Illinois, divorce alone does not automatically revoke beneficiary designations on retirement accounts, and highlights how important it is to use specific language in divorce agreements to waive beneficiary interests and the need to update beneficiary designations after major life events like divorce.

The case is Mowen v. Kelly, 2025 IL App (4th) 240906, and it involved a dispute over beneficiary designations for retirement accounts after a divorce. Raymond Earl Mowen (plaintiff) sued Jami M. Kelly (defendant), his deceased son’s ex-wife, seeking to be declared the sole beneficiary of his son’s retirement accounts. The trial court granted summary judgment for the plaintiff, which the defendant appealed.

Key Facts
Matthew Mowen (the decedent) had designated the defendant (his ex-wife) as primary beneficiary and the plaintiff as secondary beneficiary of his retirement accounts during his marriage. After divorcing in 2015, the decedent did not change these designations before his death in 2022. The divorce judgment awarded the decedent any retirement accounts in his name alone.

Legal Analysis
The appellate court found that awarding ownership of the accounts to the decedent (Matthew) in the divorce judgment did not terminate the defendant ex-wife’s expectancy interest as a beneficiary. The court distinguished between ownership interest and expectancy/beneficial interest, citing precedent that an ex-spouse’s rights as beneficiary are only extinguished by specific language in a divorce decree. The divorce decree judgment in this case lacked such specific language waiving future claims against the decedent’s property.

Ruling on Waiver
The court held that the unambiguous divorce judgment should be interpreted based solely on its language, without considering external evidence of intent. By agreeing to award the accounts to the decedent as part of the divorce, the court held that the defendant ex-wife did not waive her expectancy interest as a beneficiary under the retirement account, as ownership and expectancy are distinct interests that can coexist.

Illinois Trust Code
The court rejected the plaintiff’s argument that Section 605(b) of the Illinois Trust Code automatically terminated the defendant ex-wife’s interest as a beneficiary. The plaintiff failed to provide evidence that the retirement accounts were trusts governed by this law, as required for it to apply.

Conclusion and Disposition
The appellate court reversed the trial court’s grant of summary judgment for the plaintiff. It remanded the case with instructions to deny the plaintiff’s motion for summary judgment and grant the defendant’s motion instead. This ruling effectively upholds the original beneficiary designations, allowing the defendant ex-wife to receive the retirement account proceeds as the primary beneficiary.

Significance
This case affirms that in Illinois, divorce alone does not automatically revoke beneficiary designations on retirement accounts. It highlights the importance of specific language in divorce agreements to waive beneficiary interests and the need to update beneficiary designations after major life events like divorce.

Attorney Antonio DeBlasio has been selected by Super Lawyers® in 2008 and in each year from 2014 through 2025. No more than 5% of Illinois attorneys receive this distinction. Mr. DeBlasio has over 30 years of experience as an Illinois attorney, representing businesses, individuals, employees, employers, estates and beneficiaries of estates in Illinois.  For information on scheduling a consultation, call DeBlasio Law Group at (630) 560.1123, or you may reach us through our firm’s website at www.DGLLC.net/contact.

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After Aretha died, much to the surprise of her friends and family, not one but two wills dated from 2010 were found in a locked cabinet in her suburban home. To make matters worse, the Queen of Soul had hastily scribbled a will in 2014 that was found under one of her sofa cushions (pictured at left).  The resulting confusion triggered a feud among Aretha’s family over the validity of the wills.

We are experienced in dealing with situations similar to the one faced by Aretha’s family.  For example, one of our clients and his lifelong friend, Sam, were friends for several decades and lived together in a house in Chicago.  When Sam was diagnosed with terminal cancer, our client took care of Sam and his everyday needs. In a gesture of deep gratitude, Sam executed a deed making our client a co-owner of the house they lived in and co-owner of several investment accounts. Unfortunately — and you hear this all the time — Sam did not have an estate plan, such as a basic will. When Sam passed away, distant relatives from another state filed an action in court to take the house and accounts away from our client.  Regrettably, cases like these are all too common.  Wealth acquired over a lifetime becomes the subject of litigation due to failure to prepare a legally adequate estate plan.

Don’t wait.  Without an estate plan, your friends and family may face unnecessary conflict, delay and expense as they attempt to determine how your estate should be distributed.  Contact us to start preparing your estate plan or if you are facing litigation regarding the assets of a deceased loved one.  Call (630) 560-1123 or visit www.DGLLC.net.

Attorney Antonio DeBlasio has been selected by Super Lawyers® in 2008 and in each year from 2014 through 2025.  No more than 5% of Illinois attorneys receive this distinction.  Mr. DeBlasio has over 30 years of experience as an Illinois attorney, representing businesses, individuals, employees, employers, estates and beneficiaries of estates in Illinois.  

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At least 40 people claimed to be his heir and demanded a portion of his estate. After unraveling this mess, the court eventually ruled that Prince’s six siblings were his true next of kin.

To complicate matters even further, one of Prince’s siblings, Alfred Jackson, died while Prince’s estate was still pending in court. Before he died, Mr. Jackson signed over his interest in Prince’s estate to someone else (outside the family).

Also, because Prince had no estate plan, his estate was subject to estate taxes (affectionately known as “Death Taxes”). Between the federal estate tax rate of 40% and an additional 16% owed to the state of Minnesota, the tax man claimed a majority of Prince’s property.

So, what could Prince have done differently?

First, by establishing an estate plan, he could have clearly identified his heirs. This would help avoid confusion or uncertainty about who was entitled to receive his estate.

Second, if Prince had an estate plan, he could have specifically identified where his assets would go. He could even include a provision that disinherited anyone who died before him or who only outlived him by a short period of time. Such a provision could have avoided the complications caused by Mr. Jackson’s death. It also could have ensured that Prince’s assets stayed in the family.

Third, an estate plan could have helped Prince’s family save time, money, and heartache. The probate system is time-consuming, expensive, and stressful. Even without conflict between family members, it can still take over a year to complete probate.  During that time, your family will incur significant court costs, attorneys fees, and other charges. Also, there is no privacy in court.  Everything is open to the public, no matter how embarrassing. An estate plan could have avoided probate altogether through the use of trusts and other tools.

Fourth, if Prince had an estate plan, he could have reduced estate taxes, ensuring that more of his money would go to his family instead of the tax man.

Everyone should have an estate plan. Do it for your family.

Call 630.560.1123 to speak with one of DeBlasio Law Group’s experienced probate and estate planning attorneys.

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1.   Marital Status – Are you recently married, divorced, or remarried?

2.   Size of family – Have you recently welcomed children to your family (born or adopted)?

3.   Guardian – Do you want to change who would be guardian of your minor children?

4.   Beneficiaries – Do you want to change who will receive your property, or how much they will receive?

5.   Person in Charge – Do you want to change who will be in charge of administering your Will (Executor), your Trust (Trustee) or your                  Agent under a Power of Attorney?

6.   Assets – Has there been a significant change in the assets you own?

7.   Medical Care – Have you changed your mind about what kind of medical care you want to receive near the end of your life?

8.   Business Succession – Do you own a business and want to change what will happen to your interests in the business upon your death?

9.   Tax Laws – Have the tax laws changed since you last revised your estate plan?

10.   State – Have you moved to a new state since you last revised your estate plan?

Our firm can review your estate plan with you and help you determine what changes would be appropriate.  Call 630.560.1123 to speak with attorney Antonio DeBlasio about your estate plan.

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Call Now for a Free Phone Consultation with Illinois Attorney Antonio DeBlasio to discuss how simple it is to prepare an estate plan tailored just for you.  Call 630.560.1123.

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The death of a loved one is typically a time for grief and remembrance.  Unfortunately, it is also a time of stress.  Many people who have just lost a loved one feel anxiety on top of their sorrow because they do not know what to do when a loved one dies.  Below are four basic steps to consider taking when a loved one passes.

1. Contact a funeral home. The funeral home can help with funeral and burial or cremation arrangements, publish an obituary, and order the death certificate. If the deceased was a veteran, the funeral home can also contact the local Veterans Administration office, which may provide assistance such as funeral preparations, a burial plot, and an American flag for the funeral, among other things.
2. Locate estate plan documents. During their lifetime, your loved one may have prepared estate planning documents such as a Will and a Trust. These documents will provide instructions on how to distribute the decedent’s property.  Also, Illinois law requires that a person’s Will be filed with the local Court Clerk’s Office within 30 days after their death.  Failure to timely file a Will in your possession could result in criminal charges.
3. Consult with an attorney. An attorney who practices probate law or estate administration can review your loved one’s estate plan documents and explain the next steps you should take.  The next steps will often include identifying and inventorying your loved one’s assets and debts, determining which bills to pay, determining whether a probate case must be filed with the courts, and determining how to distribute the decedent’s property.  Be sure to ask the attorney what unnecessary services you can cancel, such as magazine subscriptions, cable t.v. services, club memberships, cell phone plans, credit cards, and more.

4. Consult with a tax professional. The IRS may require the filing of a final tax return for the decedent as well as a tax return for the decedent’s estate.  You should consult with a tax professional who can help prepare and file the necessary returns.

Questions about the administration of a loved one’s estate and the probate courts in Illinois? To schedule a consultation, contact Illinois attorney Antonio DeBlasio at 630.560.1124.   Antonio DeBlasio has been selected by Super Lawyers® in 2008 and in each year from 2014 through 2025.  No more than 5% of Illinois attorneys receive this distinction.  Mr. DeBlasio has over 30 years of experience as an Illinois attorney, representing businesses, individuals, employees, employers, estates and beneficiaries of estates in Illinois.  

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Background Facts: Our client and Sam were friends for several decades and lived together in a house in Chicago.  They did practically everything together; cooking, cleaning, laundry, doctors’ visits and vacations.  When Sam was diagnosed with terminal cancer, our client took care of Sam and his everyday needs.   In a gesture of deep gratitude, Sam executed a deed making our client a co-owner of the house they lived in.  Unfortunately — and you hear this all the time — Sam did not have an estate plan, such as a basic will. So — not surprisingly — when Sam passed away, his nephew from another State filed a citation to recover assets in an effort to take the house back from our client.

The Law: For a deed to pass title from the grantor to the grantee, there must be “delivery” of the deed by the grantor.  In re Estate of Shedrick, 122 Ill. App. 3d 861, 864 (1^st Dist. 1984).  Whether a deed has been “delivered” is a question of the grantor’s intent only, and a manual delivery is no longer required by Illinois law.  Dunn v. Heasley, 375 Ill. 43, 48 (1940); Creighton v. Elgin, 395 Ill. 87, 96 (1946).  Illinois courts do not attach as much importance to the mere manual possession of the deed as they do to the intention of the grantor, as gathered from the whole evidence, in regard to the vesting of title. Vaughn v. Vaughn, 272 Ill. 11, 24 (1916).  If the intention of the grantor to pass title to the grantee is made out by the proofs, Illinois courts have sustained such transfers, even in cases where the manual possession of the deed remained with the grantor.  Id.

In most cases, delivery of a deed is to be inferred from the facts and circumstances which by their very nature are equivocal and depend upon the subjective state of mind of the grantor.  In re Estate of Key, 22 Ill. App. 3d 265, 271 (5^th Dist. 1974).  Whether the requisite intent to make delivery existed, and whether the grantor executed his intention to pass title by a sufficient delivery, are both questions of fact and generally for the jury to decide at a trial.  Id.  Therefore, in such cases, delivery becomes a question of fact and cannot be determined as a matter of law without a trial (i.e., such as by a motion for summary judgment).  Id.

In our client’s case, we successfully argued to the court that whether the decedent actually intended to deliver the deed to our client to pass ownership of the home to our client was a question for the jury to decide at trial and could not be determined in a pre-trial motion for summary judgment.[1]  In re Estate of Key, 22 Ill. App. 3d 265, 271 (5^th Dist. 1974).

Under Illinois law, a grantor’s acknowledgment of delivery is strong evidence of delivery, especially where the certificate of acknowledgment in the deed recites in express terms that the grantor delivered the instrument.  Dunn v. Heasley, 375 Ill. 43, 48 (1940).  As in Dunn, the Deed in our client’s case contained a certificate of acknowledgement reciting in express terms that the grantor (the friend who died of cancer) delivered the deed to our client  The second page of the deed even contained a certification stating that the decedent “acknowledged that he signed, sealed and delivered the instrument [Deed].”  We argued that by itself, this certificate was sufficient reason to deny the motion for summary judgment and proceed to trial. 

Delivery to one joint tenant is sufficient as delivery to all.   We also argued to the Court that delivery of a deed to one of several grantees is equivalent to delivery to all.  McClugage v. Taylor, 352 Ill. 550, 559 (1933); Creighton v. Elgin, 395 Ill. 87, 96 (1946); Klouda v. Pechousek, 414 Ill. 75, 81 (1953).  In our case, the deed named two grantees – the decedent and our client – as joint tenants.  Ex. B-1.  The decedent signed the deed expressly declaring that it was delivered. He also had the deed notarized and kept the deed in the house where he and our client lived. Accordingly, we argued that this evidence showed that the deed was delivered to at least one of the grantees (the decedent), which is, as a matter of law, equivalent to delivery to all the grantees, including our client.

The grantor’s words and acts show that the Deed was delivered.   Illinois law also holds that whether a deed has been delivered is a question of the grantor’s intent only, and a manual delivery is no longer necessary.  Dunn v. Heasley, 375 Ill. 43, 48 (1940).  A formal delivery of the deed is not required.  Baker v. Hall, 214 Ill. 364, 369-70 (1905).  Instead, delivery may be by acts without words, or by words without acts, or by both.  Id.    

In many ways, this case is very similar to another case where the Illinois Supreme Court found a deed had been delivered even though the grantee did not manually receive the deed until after the grantors had passed away.  In Baker v. Hall, 214 Ill. 364 (1905), a mother and father executed a deed conveying land to their daughter.  The deed stated that the mother and father reserved the right “to hold full possession until the deaths of each of the grantors, when the grantee is to have full possession in her own right.”  Baker v. Hall, 214 Ill. 364, 367 (1905).  The deed also stated that it was in consideration of one dollar to them in hand paid and “also in consideration of faithful services rendered” by the daughter in caring for her parents.  Id.  After the deed was signed, it was notarized.  The notary handed the deed back to the father who kept the deed in their home where the daughter also lived.  Id. at 370-72.  The mother died several months later.  There was no evidence that the deed was physically delivered to the daughter, or that the daughter even knew of the existence of the deed before her mother died.  Id. at 369.  Several months after the mother died, the deed was filed with the county recorder’s office.  A suit was then filed seeking to void the deed to the daughter on the grounds that the deed was not delivered to her while her mother was still alive.       

The Supreme Court in Baker agreed that the deed to the daughter was a valid conveyance.  Baker, 214 Ill. at 371-72.  The court reasoned that although the deed was not manually delivered to the daughter, the grantor intended to retain possession of the property during her lifetime, and therefore, her retention of the deed in her home during her lifetime did not undermine the presumption of a valid conveyance.  Id.  Furthermore, the grantor had the deed notarized, and it was held by one of the grantors until the mother died in the house where the daughter also lived with the grantors.  Id. at 370-72. 

The deed is valid even if the grantor retained the deed.   It is not essential to a valid delivery that there should be a manual transfer of the deed from the grantor to the grantee.  Vaughn v. Vaughn, 272 Ill. 11, 23 (1916); Baker v. Hall, 214 Ill. 364, 368 (1905); Dunn v. Heasley, 375 Ill. 43, 48 (1940).  Even if the grantor retains the deed, the weight of authority is decidedly in favor of its validity, unless there are other circumstances, besides the mere fact of his retaining it, to show that it was not intended to be absolute.  Id.  The grantor’s intention to vest title in the grantee is regarded as of more importance than the mere manual possession of the deed.  Id. 

In Vaughn, the father of several adult children executed a deed conveying a farm to one of his sons.  272 Ill. at 23.  The father had the deed notarized, but he never recorded the deed and retained possession of it until his death without ever physically delivering it to the son.  Id. at 27.  After his death, the father’s other children filed a claim against the grantee alleging that the deed was invalid because it was never delivered to the grantee.  The Supreme Court affirmed the finding that the deed was a valid conveyance and that the grantee was the owner.  The Supreme Court ruled that although the father retained possession of the deed before he died, there was no evidence but that the father intended to give the full and complete ownership and title to the farm to the son.  Id. 

Moreover, Sam retained an interest in the House because the deed was to himself and Frank as joint tenants.  Ex. B-1; 765 ILCS 1005/1(b) (a joint tenancy is an estate with right of survivorship).  Where a grantor reserves an interest in the property and its possession and control, the retention of the deed is not inconsistent with the idea that delivery was intended and that the deed is operative.  Hill v. Kreiger, 250 Ill. 408, 414-15 (1911); Baker v. Hall, 214 Ill. 364, 371 (1905); Childress v. Childress, 298 Ill. 185, 191 (1921); Buck v. Garber, 261 Ill. 378, 382 (1913) (the reservation of a life estate in a deed to the grantors creates a presumption that it was intended the deed should take effect immediately as a conveyance to the grantee, for otherwise there would be no reason for such reservation).

The Court agreed with our law firm that the decedent’s retention of the deed in the house where he lived (with our client) is not inconsistent with the idea that the decedent intended to “deliver” the Deed to our client, and that a trial was necessary. 

Where the deed is beneficial to the grantee, it is presumed that he accepted delivery of it.   We also pointed to Illinois law which holds that if a deed of voluntary conveyance is beneficial to the grantee, it will be presumed that he accepted delivery of the deed, even though he had no knowledge of the existence of the deed until after the death of the grantor.  Baker v. Hall, 214 Ill. 364, 367-69 (1905); Dunn v. Heasley, 375 Ill. 43, 48 (1940); Mclugage v. Taylor, 352 Ill. 550, 558 (1933).  In this case, our client did have knowledge of the deed before his friend died.  But, even if he did not, the law holds that it must be presumed that our client accepted the deed as a matter of law because the deed was a voluntary conveyance for our client’s benefit and also because our client promptly had the deed recorded after his friend’s death.  See Vaughn v. Vaughn, 272 Ill. 11, 23 (1916) (deed was a valid conveyance even though grantor retained possession of the deed and it was not recorded until after the grantor’s death). 

In cases like this, the law presumes there was delivery of the deed. Baker v. Hall, 214 Ill. 364, 367 (1905); Mclugage v. Taylor, 352 Ill. 550, 558 (1933); Waters v. Lawler, 297 Ill. 63, 70 (1921).  At trial, the burden of proof is on the grantor, or those claiming through him (i.e., the Petitioner nephew), to show by clear and convincing evidence that the grantor (the friend who passed away) did not intend to convey title to our client.  Baker, 214 Ill. at 367-69 & 371; Waters, 297 Ill. at 70; Vaughn v. Vaughn, 272 Ill. 11, 22-23 (1916).   The presumption of the law is in favor of delivery, especially where the parties have a great degree of confidence in each other.  Baker v. Hall, 214 Ill. 364, 367 (1905).  Furthermore, the presumption of the law is in favor of delivery, especially where the transfer is voluntary, instead of part of a sale.  Baker v. Hall, 214 Ill. 364, 367-68 (1905); Mclugage v. Taylor, 352 Ill. 550, 558 (1933); Walters v. Lawler, 297 Ill. 63, 70 (1921); Vaughn v. Vaughn, 272 Ill. 11, 22 and 26 (1916).

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There is a 3,000 year old proverb: “teach us to number our days, that we might gain wisdom.”  In other words, none of us know for sure what tomorrow holds, so it’s smart to be prepared.  Are you prepared?  Ask yourself the following questions:

1. When I die, who will take care of my children?
2. Who will receive my property?
3. Whom do I trust to follow my wishes in managing my estate?
4. If I’m still alive but incapacitated due to injury or illness, who will make decisions about my health care and my other affairs?

The attorneys at DeBlasio Law Group can help you prepare an estate plan that answers these questions. Here are some key elements to an effective estate plan.

1. Will – A will can designate who will become the guardians of your minor children, who will manage your estate, and who will receive your property.
2. Trust – A trust is another method for passing property to others. It can also be used to hold property during your lifetime.  Unlike a will, the property in your trust can be passed to others without the delay and expense of going through the court system.  It can also provide income for your beneficiaries over an extended period of time.  And it may have tax advantages for your estate.
3. Power of Attorney for Property – A power of attorney for property can designate someone to make decisions about your property if you are incapacitated and unable to make those decisions for yourself.
4. Power of Attorney for Health Care – A power of attorney for health care can designate someone to make decisions about your health care if you are incapacitated and unable to make those decisions for yourself.
5. Living Will – A living will can inform your family and your physicians about how to handle your end-of-life medical care.

Don’t wait.  Without an estate plan, your loved ones may face unnecessary conflict, delay and expense.  Contact the experienced attorneys at DeBlasio Law Group to start preparing your estate plan. Call (630) 560-1123 or visit www.DGLLC.net.

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To speak with one of our attorneys about preparing a power of attorney, or to address your estate planning needs, call us at (630) 560-1123 or via our website at www.DGLLC.net/contact.  We are here to help.

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The Illinois Probate Act provides:  “The attorney for a representative is entitled to reasonable compensation for his services.”  755 ILCS 5/27-2(a).  There is no provision in the Probate Act requiring that the executor’s attorney’s fees and costs be paid exclusively from the estate.”  In re Estate of Elias, 408 Ill. App. 3d 301, 323 (1st Dist. 2011).  However, the ISBA’s opinion declares that a lawyer and executor cannot agree that the executor will personally pay fees that have been disallowed by the probate court as being excessive (i.e., unreasonable).

Illinois Rule of Professional Conduct 1.5(a) begins as follows:  “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”  The ISBA opinion states that if a legal fee is deemed excessive by a probate court, it likewise is excessive under Rule 1.5(a).  (Note: ISBA opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in evaluating the conduct of lawyers.)

To speak with one of our estate planning attorneys, call us at (630) 560-1123 or visit our website at http://www.DGLLC.net/contact.  We are here to help.  

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