What Happens if I don't have a Will?

When discussing estate planning with friends and family, a common response is "I should probably prepare a Will someday." While that is the first reactionary comment, many also want to know what happens if they do nothing.  The simple answer to that is, it depends. 

Some people may fear that if they do nothing, all of their assets will go to the state or federal government. Unless you owe significant taxes, that is unlikely to be the case.  In fact, all states have laws that direct who inherits from a decedent if there is no will.  These laws are known as "intestacy statutes." 

In Illinois, the intestacy statute directs as follows:

If there is a surviving spouse and no descendants, 100% of the estate would go to the surviving spouse.

If there is a surviving spouse and also one or more descendants of the decedent (child or grandchild): 1/2 of their assets go to the surviving spouse and the other 1/2 is shared by the decedent's descendants per stirpes (in equal shares). 

If there is no surviving spouse but a descendant of the decedent: the entire estate goes to the decedent's descendants per stirpes.

If there is no surviving spouse or descendant, but a living parent, brother or sister: then the entire estate to the parents, brothers and sisters in equal parts. 

The statute lays out further examples, with the intent that the estate of the decedent goes to family members along the bloodline.  This may or may not be the wishes of the individual who has passed but it does allow for the family to distribute the estate according to the law.

Another way assets may be transferred upon someone's death without a Will is through a beneficiary or transfer-on-death designation.  This is usually the case for retirement plans (401k and IRAs) and insurance policies. These assets allow for an individual to name a beneficiary so that the assets are paid directly to the named beneficiary upon the death of the holder of the plan or policy. 

A transfer-on-death designation may also be available with certain bank or investment accounts.  This allows the account holder to name a beneficiary so that the asset transfer to an individual or charity upon death.

While options allow for a distribution of a decedent's estate, the result may not be exactly how the individual intended. However, other than having a Will, utilizing some of these options may be an effective strategy when putting together an estate plan with a Will. To have a better understanding of how your estate will be distributed, it is helpful to sit down with an estate planning attorney to whether it would benefit you and your family to prepare a Will.

If you have any questions about preparing an estate plan, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

Disclaimer: The materials on this website are provided for informational purposes only and do not constitute legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between any attorney and any other person, group or entity. No representations or warranties whatsoever, express or implied are given as to the accuracy or applicability of the information contained herein. No one should rely upon the information contained herein as constituting legal advice. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.

Is Your Estate Plan Up-to-Date?

If you have created an estate plan, you are ahead of almost 70% of people who recently said they do not have a Will.  However, it is important to review your plan every few years, and when certain life events create a need for immediate review. 

When Should I Review My Estate Plan?

There is no set time frame for reviewing your estate plan but every three to five years it is a good idea to contact your estate planning attorney to talk about changes that have happened since the last time you reviewed your estate plan.  As family members move and get married, it is important to update contact information on the Power of Attorney forms to ensure that the most up-to-date information is listed in case of emergency.  There are also changes in the law that may impact your estate plan that could require amendment. 

Then there are life events that happen which require more of an immediate update to your estate plan.  Many of those events include the following:

Marriage - When you marry, you may want to include your new spouse in your estate plan.  You may open joint checking accounts or purchase a home together. A complete review of your Will, Trust, Powers of Attorney, retirement plans, and life insurance policies should take place. If a child of yours gets married, that may also cause a review depending on how your child may take an inheritance. 

Divorce - After a divorce, accounts that were once held jointly are divided and assets may be transferred from one spouse to the other.  One of the most common mistakes is not removing the ex-spouse from your estate planning documents, retirement plans, and life insurance documents. 

Birth of Children - This could require a guardian provision in a Will or updates to your Power of Attorney forms.  With the birth of grandchildren, you may want to include them in distributions or review trust distributions.

Children reach age of majority - Depending on your state of residence and your estate planning documents, the age of majority could create instant access to an inheritance.  Updating the age of distribution to beneficiaries may be warranted. Also, you should be aware that once a child becomes an adult, you as the parent are no longer able to access your child's financial or health records without express permission, or by having a Power of Attorney.

A significant change in assets - Your career may advance or you may inherit assets, as assets increase, the need for more sophisticated estate planning could be necessary.  Further, depending on your profession, you may wish to look into asset protection.

Retirement - Entering into retirement, your estate plan may be drafted to include retirement plan assets, to and provide for a successor trustee, or an agent, to assist you with your financial transactions in the event you can no longer do so yourself. Reviewing your plan should be discussed as well as naming appropriate beneficiaries. 

Serious Illness - Your plan should be designed to handle your incapacity or terminal illness. If a change to your health occurs, a review of your plan should take place.

Disability - Whether your own disability or that of a beneficiary, you may wish to update your plan to include special needs provisions or discuss Medicaid planning.

Death of spouse or beneficiary - The death of anyone named in your estate planning documents is a definite cause for review.  You do not want to leave potential fiduciary positions unfilled and the death of a beneficiary should trigger a review of distributions.

Whether it is one of these events that cause you to review your plan or you simply want to make sure you know where your documents are, it is important to have a current estate plan as an outdated plan could have unintended consequences. 

If you have any questions about preparing an estate plan, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

Disclaimer: The materials on this website are provided for informational purposes only and do not constitute legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between any attorney and any other person, group or entity. No representations or warranties whatsoever, express or implied are given as to the accuracy or applicability of the information contained herein. No one should rely upon the information contained herein as constituting legal advice. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.

Power of Attorney Documents In the Age of COVID

Power of Attorney documents (POAs) are important legal documents for everyone once they reach the age of majority.  They may be even more important in today's world as we deal with the current pandemic. As people who are more susceptible to the virus limit their exposure in public, it may be helpful to name an agent to assist them in the handling of financial matters. Or in the case of individuals who contract COVID, having POAs may be critical to making financial and health care decisions if they are hospitalized for a period of time. 

POA documents are relatively easy to put in place. Most states have two separate POAs, one that covers matters pertaining to health care decision making and one that deals with property or financial matters.  The documents are normally forms that are state-specific and drafted by the legislatures to reduce any confusion within the state.

The Durable Power of Attorney deals with financial or property matters and is a document that names a person as "agent" to act on your behalf in case of disability or unavailability.  The document can allow an agent to handle financial matters (e.g., banking, bill paying, etc.) as well as property transfers.  This document can be drafted broadly or be limited to specific acts. 

A Health Care Power of Attorney designates an individual to make important health care decisions on your behalf.  This can go into effect when you are unable to make decisions due to a temporary or permanent disability or when the document is executed.

Most individuals think of Wills and Trusts when it comes to estate planning, but because the Power of Attorney documents are there to assist you during your life, you should not be without them.

If you have any questions about preparing an estate plan, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

Disclaimer: The materials on this website are provided for informational purposes only and do not constitute legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between any attorney and any other person, group or entity. No representations or warranties whatsoever, express or implied are given as to the accuracy or applicability of the information contained herein. No one should rely upon the information contained herein as constituting legal advice. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.

Virtual Witnessing during COVID-19

While the country continues to adjust to the "new normal," of stay at home orders and social distancing, the State of Illinois is quickly adapting to remote witnessing of estate plan documents. These measures are only temporary implementations, but they allow people to safely create estate planning and other documents to ensure that their assets are protected.

While the new executive orders are only temporary, they allow a process as critical as the Estate Plan process to continue during these uncertain times. Estate Planning is often an afterthought for most people until a significant event occurs which motivates individuals to get their affairs in order. Consequently, the COVID-19 pandemic has motivated thousands across the country to draft or update important estate plan documents like Powers of Attorney for Healthcare to ensure that they are delegating their power to make healthcare-related decisions on their behalf to the correct people. 

Therefore, these estate planning documents have become more critical than ever before. Thanks to new executive orders and regulations in Illinois, there is no need for a signatory, witness, and notary to all be in the same room during the signing process. In fact, so long as certain guidelines are closely adhered to, a signatory can effectively execute all of their estate plan documents in the comfort of their own home, miles away from their witnesses.

In order to safely notarize and witness documents while remaining in compliance with the new Illinois regulations, there are a few guidelines that must be followed;

• The remote notarization must be conducted on a two-way, real-time audio-video communication that allows for direct interaction. The picture on the communication must be clear so that the State ID/credentials of the notary are visible to the signatory. While it may differ in other states, standard video conferencing servicing applications such as Google Hangouts, Zoom, and Skype for Business are permitted methods of conferencing the signing in Illinois.

• The entire virtual signing must be recorded. Additionally, the recording must be kept for at least three years after the date of signing. 

• Before the witnessing commences, witnesses and notaries must affirmatively state on record their name, and that they are currently located in the state of Illinois.

• The signatory must show the notary and witness every page of the estate plan document. This must be the case for every document, including Wills, Trusts, Durable Financial Powers of Attorney, Powers of Attorney for Healthcare, and any other document a signatory may be executing in front of the witnesses. 

• The signatory must transmit, either electronically or by fax, a legible copy of the entire signed document directly to the witness no later than twenty-four hours after the document is signed The witness must sign the transmitted copy of the document and transmit the signed copy of the document back either electronically or via fax to the signatory within 24 hours of receipt.

• If necessary, the witness may sign the original signed document as of the date of the original execution by the signatory provided that the witness receives the original signed document together with the electronically witnessed copy within thirty days from the date of the remote witnessing. 

Moreover, trust and estate laws have not often been prone to change and modification. While time will tell whether these orders become modified further to include electronic signature applications such as Docusign, Adobe EchoSign and HelloSign, the allowance of any act of witnessing to be completed remotely by two-way audio-video communication technology is a necessary progress to ensure that individuals can safely and securely distribute their assets.

If you have any questions about tax and estate planning, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

Disclaimer: The materials on this website are provided for informational purposes only and do not constitute legal advice.  Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between any attorney and any other person, group or entity. No representations or warranties whatsoever, express or implied are given as to the accuracy or applicability of the information contained herein.  No one should rely upon the information contained herein as constituting legal advice.  The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.

Simple Steps to Ensure That Your Assets are Protected During this Uncertain Time

In the midst of the COVID-19 pandemic, our country and society as a whole seems to be facing more uncertainty than ever before. The virus has significantly disrupted nearly everyone’s daily routine. We are left to remain in our homes and contemplate the circumstances, which often causes more worry.

Though an uncomfortable topic, it is especially important during these uncertain times to ensure that your assets are protected. If something were to happen to you, would your assets be distributed to the people you would want them to be distributed to? In the event you are incapacitated, would the individual best suited to speak on your behalf be empowered to do so? Will your personal and real property be taken care of? Developing a comprehensive estate plan is a quick and cost-effective way to ease some of these burdens. The following documents are common tools utilized in an estate plan:

A Basic Will: A Will is the instrument that passes your personal assets to the individual or individuals who you wish to receive your assets. This instrument also allows you to name a Guardian for your children. Unlike a Trust, a Will is a public document that is typically filed with your local Clerk of Court Office. A Will is an especially important instrument because if you were to pass without a Will, your entire Estate would be distributed through the laws of intestacy, which can lead to probate. Probate arises when there is a dispute as to where a particular asset or assets should be distributed. Probate issues can lead to unwanted costs such as attorneys' fees and court costs.

Declaration of Trust: While a basic Will is a public document that can be seen by anyone who inquires, a Declaration of Trust is a private instrument that is not recorded. While being private, a Declaration of Trust (a so-called “living trust”) has the advantage of avoiding probate with respect to the assets which are transferred to the Trust during your lifetime.  In other words, assets which you transfer to your Declaration of Trust during your lifetime will continue to be held by the Trust after death and, in turn, will be distributed in accordance with the provisions of the Trust.  In this way, those assets will “by-pass” probate while still being distributed in a manner consistent with your estate plan.  In addition, a funded Declaration of Trust enables you to provide for the management of your assets should you become disabled.  For income tax purposes, so long as you are alive, your Declaration of Trust is “transparent” and you will be taxed (as owning directly) any assets transferred to the Trust.  This means that you can transfer assets into your Trust without any effect on your current income taxes.

Power of Attorney for Healthcare: The Health Care Power of Attorney enables you to select an agent to make health care decisions for you (and includes provisions regarding life-sustaining machines and anatomical gifts).  Although typically effective upon execution, this Power of Attorney is designed to facilitate the handling of your health care decisions should you be unable to.  

Power of Attorney for Property ("Durable Power of Attorney"): Similar to the Power of Attorney for Healthcare, a Power of Attorney for Property is an instrument that enables you to select an individual to make decisions on your behalf should you be unable to. However, this particular Power of Attorney allows your elected agent to make financial decisions on your behalf, as opposed to decisions related to your medical treatment and healthcare. These financial decisions can be as broad or narrow as you would like. From handling tax matters to Social Security or employment matters, to simply dealing with one single property, the Power of Attorney for Property is an extremely powerful but flexible estate planning instrument. 

Before signing estate planning documents, it is extremely important to have a preliminary discussion with the people closest to you about what should happen to your assets once you have passed. While this may be a difficult and emotional conversation, this is critical to the estate planning process. It is also important to keep in mind that these documents can be (and typically are) often modified throughout your lifetime. During times of uncertainty and worry, having one less burden to worry about can make a significant difference. 

If you have any questions about preparing an estate planning, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

Disclaimer: The materials on this website are provided for informational purposes only and do not constitute legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between any attorney and any other person, group or entity. No representations or warranties whatsoever, express or implied are given as to the accuracy or applicability of the information contained herein. No one should rely upon the information contained herein as constituting legal advice. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader's facts and circumstances.