Wake-up call: Wills and Supreme Court Rule 138

The Trusts and Estates Discussion Group recently brought up a very interesting discussion about Illinois Supreme Court Rule 138, parts of which are to take effect January 1, 2015. The Rule requires that paper and electronic filings in civil cases omit personal identity information. For purposes of the Rule, personal identify information includes: (1) social security and individual taxpayer-identification numbers; (2) birth dates; (3) names of individuals known to be minors; and (4) driver’s license numbers. The additions to the Rule are underlined.

A redacted filing of personal identity information for the public record is permissible and shall only include: (1) the last four digits of the Social Security or individual taxpayer-identification number; (2) the year of the individual’s date of birth; (3) the minor’s initials; (4) the last four digits of the driver’s license number; (5) the last four digits of the financial account number; and (6) the last four digits of the debit and credit card number.

If the court finds the inclusion of personal identity information in violation of the rule was willful, the court may award the prevailing party reasonable expenses, including attorney fees and court costs.

Although these requirements seem reasonable, what do we do with Wills, which cannot be altered by law? Most Wills identify the testator’s children, whether minors or not. Many contain birthdates for purposes of identification, and some even older Wills contain social security numbers. What if a certified copy of the Will is needed? What can or cannot be included in an Affidavit of Heirship?

Julie Kolodzieg of Matlin & Associates, P.C. in Northbrook more specifically identified the conundrum for estate planners and probate attorneys. She noted that 755 ILCS 5/6-1 “says an original Will cannot be altered (alteration is a felony) and also requires the original Will to be filed with the Circuit Court clerk (failure to do so is also a felony)….Therefore we have a statute which requires a Will … to be filed with the court in unredacted form while at the same time having a duty under the Rule to NOT file it unless under impoundment.”

The Rule says that “[W]hen the filing of personal identity information is required by law, ordered by the court, or otherwise necessary to effect disposition of a matter, the party shall file a form in substantial compliance with the appended ‘Notice Of Confidential Information Within Court Filing.’” A sample form is included in part (d) of the Rule.

This Notice is to provide the personal identity information that has been omitted or redacted and will be impounded by the clerk immediately upon filing and be maintained as confidential. “After the initial impounded filing of the personal identity information, subsequent documents filed in the case shall include only redacted personal identity information with appropriate reference to the impounded document containing the personal identity information.”

The information provided with the “Notice of Personal Identity Information Within Court Filing” will be available to the parties, the court, and the clerk, and the information may be transferred to appropriate justice partners. In addition, the clerk, the parties, and the parties’ attorneys may prepare and provide copies of documents without redaction to financial institutions and other entities or persons which require such documents.

Presumably, the Clerk of the Court in each county will need to find solutions for individuals and attorneys to file a decedent’s original Will. Most likely the original will be filed under seal or immediately impounded, along with a Notice of Personal Identity Information Within Court Filing. A redacted copy of the original Will would be filed at the same time and made part of the court record. The Clerk will also need to find a way to certify a redacted copy of the Will, in addition to a copy of the original Will if needed by financial institutions and other entities or persons that require a copy of the original.

If it is necessary to open a probate estate, similar measures would be required for documents such as the Exhibit A to the Petition for Probate of Will and Letters Testamentary, the initial document filed with the court to open the estate, (and the Copy of Will in Cook County). The Affidavit of Heirship may also require a Notice. If addresses are to be redacted, typical notices will need to impounded as well. Separate or amended Notices would need to be filed with the Court if any personal identity information is added.

A problem could arise because the Notice is to be stored separate from the case file. How is the judge going to be able to identify the minors named in the Will or the heirs at law to make sure they are properly identified and their needs are properly addressed? We await instruction from the Clerk of Court.

The procedures should not be that difficult. The Rule has been in place for two years and courts have established procedures for personal identity information. It is only the addition of birthdates and names of minors to the list in January 2015 that brings many of our Wills under the purview of the Rule, unless the Court adds other identification information to the list. This is more like a wake-up call for estate planning and probate attorneys about Rule 138. ■

__________

Mary D. Cascino is Senior Counsel at Handler Thayer, LLP in Chicago, Illinois, an Fellow of the American College of Trust and Estate Counsel, past chair of the Illinois Bar Association’s Trust and Estate Section Council, and adjunct professor at John Marshall Law School.