Order Naming “Special Administrator” Of A Trust Immediately Appealable

Scott and Debra, co-trustees of their late mother’s trust, could not get along. After motions by each to have the other removed, Debra requested that a “special administrator” (more accurately, a “trustee”) be appointed. Her motion was granted on March 10, 2006. The court named Kathleen Ryding the trustee, “until further order of court.”

Unhappy that Kathleen was named trustee, Scott appealed. But he didn’t file a notice of appeal until May 31, 2006, well more than 30 days after Kathleen was appointed. The Second District Illinois Appellate Court dismissed the appeal, ruling that it did not have jurisdiction over the untimely filed notice of appeal.

Two points in the opinion are important.

First, the court ruled that the appointment of the trustee was a final order, not interlocutory. Kathleen’s appointment was “similar to the administration of an estate and so capable of generating orders appealable under [Illinois Supreme Court] Rule 304(b)(1).”

Scott argued that Kathleen’s appointment “until further order of court” made the order non-final and thus not appealable. The court rejected that argument, and stated that the finality of an order does not depend on “how long the order will be in effect.” Setting a potential limit on the duration of the trustee’s appointment “did not mean that it [the court] would revisit the merits of the appointment.”

As of this date, the opinion, In re Estate of Russell, No. 2-06-0636 (3/28/07), has not been release for publication. It is available on Westlaw at 2007 WL 1041254. I’ll link to it as soon as the case is officially published.

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