It is not unusual for friends and family members to fight over a loved one’s possessions after they are gone. Indeed, you often hear stories about someone walking off with a deceased person’s property even before the will is located and filed. In many cases, the person genuinely believes that the deceased would have wanted them to have a particular item. But this belief can lead to litigation in probate court.

Probate is the legal process employed by U.S. states to oversee the transfer of a deceased individual’s property, either according to the terms of their will or under the state’s intestacy laws, which govern in the absence of a valid will. The personal representative or executor is the person appointed by the probate court to marshal the estate’s assets and ensure their proper distribution. This means the personal representative has the authority–and an obligation–to try and recover property that was taken without permission from the home of the deceased after their death.

Illinois Bankruptcy Judge Rules Debtor Must Return Deceased Boyfriend’s Artwork to His Estate

A recent Illinois case, In Re Allen, illustrates how emotionally fraught this type of litigation can be. This is actually a federal bankruptcy case, but it originated in a state-level probate administration. The decedent in this case lived in a house in Illinois that was owned by his mother. The decedent lived with a woman–presumably his girlfriend–who was the debtor in the bankruptcy case.

The decedent died unexpectedly in September 2017. Following his death, the mother informed the debtor that she planned to sell the house. The mother therefore told the debtor to vacate the property. According to court records, the debtor “got mad and ran into a room and closed the door, refusing to come out.” She begged the mother to let her stay, but the mother said she would have to leave “by the end of the month or the beginning of the next month.”

The decedent was an artist. Much of his artwork remained in the house at the time of his death. Two days after informing the debtor she would have to leave, the mother discovered that all of her son’s artwork had been removed from the premises.

The mother demanded the debtor return the artwork. When the debtor failed to do so, the mother, acting as the personal representative of her son’s estate, asked an Illinois probate court to intervene. The probate judge held a trial and determined that “the missing artwork was property of the probate estate” and had to be returned. The probate court noted that the decedent had debts, and the artwork could be sold to repay some of his creditors.

The debtor refused to follow the probate court’s order. Instead, she filed for Chapter 7 bankruptcy protection in federal court. Under Chapter 7, a debtor can ordinarily “discharge” their legal obligation to satisfy debts, including those arising from civil litigation. But there are a number of exceptions to the discharge rule. For example, a court will not discharge a debt resulting from a “willful and malicious injury by the debtor to another entity or to the property of another entity.”

Here, the mother argued that the debtor’s ongoing refusal to return her son’s artwork constituted a “willful and malicious injury” against the probate estate. The bankruptcy court agreed. In August 2023, U.S. Bankruptcy Judge Jacqueline P. Cox held the debtor’s probate court judgment could not be discharged in Chapter 7 bankruptcy due to her willful and malicious actions:

[T]he Debtor told a state court judge that she owned certain items and that she would not return them. She should have appealed that order; she should not have refused to obey it. This shows that her failure to turn the items over was willful and malicious. Her blatant disregard of a court order indicates that she knew she was causing [the mother] pain and that she intended the injury.

As the judge deemed this particular debt non-dischargeable, the mother is entitled to continue her efforts to recover her son’s artwork even after the debtor’s bankruptcy case has concluded.

Consult a Probate Lawyer First

It is never a good idea to disobey a judge. Even if you strongly disagree with a court’s decision, the appropriate course of action is to file an appeal, as the bankruptcy judge suggested in the above case. And if you are involved in any legal matter regarding the disposition of a deceased person’s property, it is always best to consult a qualified probate lawyer in your state before making any rash decisions.

Disclaimer: This post is provided for informational purposes only. The author is not an attorney and nothing in this post should be construed as legal advice. You should always consult a licensed and qualified attorney in your state about any legal matter.