Zapolis & Associates, P.C.

Considering trusts for estate planning

Wed, 21 Dec 2022 17:00:00 GMT

Estate planning can be a challenge for Illinois residents. People want to share their assets without burdening their loved ones with heavy estate taxes. Establishing a trust may offer benefits that will help meet your long-term goals.

Comparing trusts and wills

Most individuals think about wills when considering how to pass on their assets. After your death, this document goes through probate court where it must be verified. This process can delay and complicate the distribution of your wealth.

Trusts are private legal contracts that involve the transfer of wealth. In this arrangement, the trust becomes the owner of the money or property, and a designated trustee manages the assets.

The person who creates the trust gives instructions about the distribution of assets. You can make provisions for what happens to property while living, dead or incapacitated. An important difference between trusts and wills is that the trust goes into effect immediately after signing.

Revocable versus irrevocable trusts

In establishing a trust , it is necessary to choose a revocable or irrevocable model. Revocable trusts provide more control over the assets included in them. You can change the instructions or remove assets at any time while you are living.

Irrevocable trusts are arrangements that exist so long as they hold assets. Once you place an asset in an irrevocable trust, it is no longer part of your taxable estate. Using this model can lower your taxable wealth while you are alive and reduce taxes for your loved ones after you die.

Planning for change

Relationships within families can be complicated. A revocable trust offers the option of redistributing your assets when family situations change. This design allows you to adapt the fund to events like the birth of new children or a couple’s divorce.

Placing assets into a trust also allows you to maintain care for a loved one after you are gone. The trust can provide a regular allowance rather than distributing assets in a lump sum.

Developing a plan for your estate is always a prudent action. A trust may be the best solution to manage your assets in the present and distribute them after you are gone.

What are the most common reasons for contesting a will?

Mon, 17 Oct 2022 19:23:00 GMT

All Illinois residents should have a will as part of their estate planning efforts. Most people understand that there are certain situations that allow a will to be contested. These are the most common reasons for it.

Undue influence

A will can be contested when undue influence is a factor. This means that another person convinced the will’s creator, also known as the testator, to make changes to the document that they otherwise would not have made. Usually, the person guilty of undue influence has ulterior motives and wants the person to change their will at the expense of other beneficiaries.

Lack of testamentary capacity

When a person creates their will, they must have full mental capacity to do so. If the person is suffering from some type of medical condition that impacts their ability to think clearly such as dementia, Alzheimer’s disease or a brain injury, the will may be challenged due to lack of testamentary capacity. The testator must understand why they are creating their will, what it means and all other aspects of it.

However, just because a person has one of these conditions, it doesn’t mean they lack the capacity to make their will. Even if they have one lucid moment during the creation of the document, it makes it valid.

Fraud

If a beneficiary believes that the will is fraudulent, they can contest it. However, the individual contesting the will bears the burden of proving that fraud exists and must present evidence. For example, if another person created the will and forged the person’s name on it, the beneficiary contesting on the grounds of fraud would have to show the person’s true signature. They might even go a few steps further and hire a handwriting expert to testify that the signature was, indeed, forged.

Revocation

Another reason why a will might be contested is revocation. An old will can be revoked after the new document is signed or after it’s destroyed. Revocation can also occur through written proof by the testator that they intended to replace the will with a new version.

These are some of the most common reasons why wills might be contested.

The probate process for those who pass away without a will

Mon, 22 Aug 2022 22:31:00 GMT

Dying intestate in Illinois means that any property left behind will be distributed in accordance with Illinois intestate succession laws. “Intestate” is the legal term for dying without a valid, enforceable will. Probate begins with the court appointing an administrator who is charged with the specific duties regarding property distribution. Claims against the estate are also prioritized with any remaining assets distributed according to family inheritance standing.

Naming an administrator

Individuals who are legally married will typically have their spouse named as administrator. However, this is not necessarily an automatic assignment. The administrator , also known as the personal representative, must be of sound mind and be capable of performing the duties according to law. Certain criminal histories can result in denial in some instances.

Order of administrator succession

Aside from an assignment of a spouse who may also inherit the decedent’s personal assets, the line of administrator succession next goes to children and then on to parents if the decedent has no children. The court decides which sibling will be assigned as administrator, but input from the family is accepted in most probate situations. The court also has the power to assign an individual from outside of the family or require a bond posting.

Duties of the administrator

The estate administrator is required to inventory all assets and documents pertaining to the decedent estate and notify all creditors. However, the order of payment distribution priority begins with tax liabilities, funeral expenses, court costs, attorney’s fees, and administration expenses. Creditors are typically paid after these initial payments are satisfied. If there are any estate proceeds remaining after the probate process is complete, they are distributed to the family per orders from the court.

Some decedents fail to establish a will because their estate is insolvent. Those who may be in charge of estate administration can actually do nothing if it is the best option. Any property that is held in joint ownership such as a bank account or even real estate will become property of the surviving account holders.

Estate planning mistakes that could lead to litigation

Fri, 17 Jun 2022 22:44:00 GMT

Estate planning is something that all Illinois residents should do to prepare for the future. However, it’s easy to make certain mistakes that could later cost you. These are some of the most common ones.

Not having one at all

Perhaps the worst mistake you could make is not having an estate plan at all. It means that after you die, no one will be able to manage your affairs and estate. People you would have otherwise left inheritances might not get anything at all. This could cause a lot of grief to your loved ones.

Not updating your beneficiaries

Your beneficiaries should be periodically updated. Whenever something in your life changes, they should be updated. This could involve the death of a spouse, divorce, remarriage, the birth of a child, starting a business or even someone deciding they no longer want to inherit anything from you.

All of your most important estate planning documents should be updated as circumstances change.

Naming the wrong person as executor of your estate

It’s important to name the right person to serve as the executor of your estate. Not everyone is appropriate for this role. For example, if you name your brother but he has a serious gambling problem, he might not be the best person for the job. Choosing someone financially responsible is wise. This could help avoid a potential lawsuit based on self-dealing.

Only having a will

Some people think that only having a will is enough when it comes to estate planning. This isn’t true. Things can become complicated if you go this route. You can’t name individuals to handle your financial and medical matters this way. A will alone can also cause probate to last too long, which means your heirs might have to wait months or years to get their share of assets and property.

Not funding a trust

Trusts need to be funded with assets. Some people create a revocable living trust but then neglect to fund it, making it useless and leading to a potential lawsuit from the named beneficiary.

If you avoid making these estate planning mistakes, it can benefit everyone.

Do you need to make changes to an estate plan?

Tue, 19 Apr 2022 21:01:00 GMT

It is in your best interest to start building an estate plan as soon as you become a legal adult. This can help to ensure that assets such as your Illinois home, car or business are taken care of after you pass away or if you become incapacitated. To further ensure that your estate plan meets your needs, it can be a good idea to update it at regular intervals. Let’s take a closer look at why you might want or need to do so.

Has your family grown or changed at all?

If you get married, you may want to include your new spouse as a beneficiary to your retirement, life insurance and other accounts. If you have a child, it may be necessary to appoint a guardian for your son or daughter in the event that you can’t provide adequate care. Finally, a divorce or death in the family may require you to remove an individual as a beneficiary on a will, trust or other plan documents.

Have you acquired new assets?

Ideally, you will account for a new asset such as a house, car or art collection as soon as you acquire it. The same is true if you start a business, medical practice or similar type of organization that may have some sort of monetary value.

Do you want to transfer assets out of your estate?

Transferring assets into a trust may keep them away from creditors, government agencies or other parties. Furthermore, creating a trust may reduce the value of your estate for tax purposes. Therefore, taking such a step may be something that you might want to consider during your next estate planning session.

At a minimum, you should review your estate plan at least once a year to make sure that it doesn’t need to be changed or updated in any way.

The biggest roles of executors

Thu, 17 Feb 2022 22:05:00 GMT

When someone passes away in Illinois, the estate may need to go through probate if it includes more than $100,000 in assets. This process can be complex, and it’s often best to have an executor to help manage everything.

Who is an executor in estate administration?

An executor is a person who’s appointed by the court to administer the estate of a deceased person. Note that the courts only appoint an executor when there is no will or when the person named in the will is unable to serve.

What are the key roles of an executor?

One of the key roles of an executor is to inventory and appraise estate assets. This means that the executor will have to make a list of estate assets, such as property and personal belongings, and then assign them a fair market value.

The executor must also notify estate creditors that they need to submit claims against the estate. This gives creditors some time to file their claim or forfeit their right to do so. The executor may also have to pay estate debts.

The executor is responsible for distributing estate assets to beneficiaries in accordance with the will. This often includes filing a petition with the court and waiting for approval. Of course, estate administration can be complicated, so an executor must also deal with any disputes or challenges along the way. For instance, if someone believes they should have received a larger share of the estate, they may dispute the will or executor’s decision.

Who can be an executor?

The short answer is that anyone can be an executor as long as they’re appointed by the court or the will. However, it’s important to note that the estate administration process can take a lot of time and energy, so it’s best to choose someone who’s responsible and organized.

Being an executor is a big responsibility, but having an estate plan in place can make estate administration less stressful for the executor and beneficiaries. In addition, selecting the right person for the job can make everything go a lot more smoothly.

The executor’s role in the probate process

Wed, 29 Dec 2021 18:23:00 GMT

After a loved one passes away, someone must take on the role of executor of their estate. If the deceased left behind a will, that document will likely include the name of the person they designated to be the executor. This is an important job. The executor’s role is to guide the estate through probate court, settle its debts and honor the deceased’s final wishes.

Here are some of the executor’s most important duties .

Begin the probate process by submitting an original copy of the will to the court.
Identify and secure the deceased’s assets as soon as possible after they pass away.
Go through those assets to determine which must pass through probate and which can avoid it.
Manage the assets until they are distributed. For example, making sure the mortgage payments on the house get made.
Notify known creditors, such as banks and credit card companies, of the deceased’s passing.
Once creditors start making claims against the mistake, review those claims and approve or deny paying them.
If necessary, sell assets to raise the cash to pay creditor claims.
Calculate and pay estate taxes, if any.
Distribute the remaining assets according to the will or trust’s instructions.

Another responsibility for the executor is to represent the estate’s interests if someone challenges the will’s validity . The executor must then defend the will in court if it comes to that. Though will challenges are fairly rare in Illinois, they do happen. Sometimes, family members are suspicious of an amended will from shortly before the decedent’s death. Or a relative comes forward with what they say is the testator’s actual final will.

A lawyer can help you

Fortunately, as executor, you can seek representation and advice from a probate attorney. Their guidance can make the process smoother and faster and reduce the chances of litigation.

4 reasons why guardianship litigation may surface

Mon, 11 Oct 2021 20:55:00 GMT

Some families think they have the best intentions in mind and done all the right things to protect their elderly loved ones by naming a guardian for that person. But the move may have been premature in the eyes of that elderly loved one.

And, in other cases, when guardianship was necessary, the person selected may not have the best qualities to be one or flat out abuses his or her power, making choices not in the best interest of the elderly person. Such narratives open the door for potential guardianship litigation.

No need, objecting to the choice

When it comes to guardianship litigation, these scenarios often prove complicated and contentious . These situations often pit family members against family members, where compassion for the elderly person and advocacy to protect them collide.

Here are some of the reasons why guardianship litigation occurs:

Elderly loved one does not need a guardian: The person considered vulnerable and fragile may think that the decision to name a guardian was premature. Their mental and physical faculties remain intact, and they want to continue to take care of themselves. The need for a guardian may not exist.
Objecting to the choice of guardian: Such situations may lead to explosive disputes. Someone may contend that the proposed guardian is inappropriate, has less-than-redeeming qualities and is not a good fit. Among the parties who may object include family members, friends and neighbors.
Abuse of power: Once in the guardian role, this person ensures the elderly person has a safe place to live, how to maintain his or her health and preside over finances. If something seems amiss, friends and relatives may step in regarding the choices that person has made.
When a guardian seeks court permission: T he guardian may seek certain permissions for the sale of a home, placing the elderly person in a long-term care facility as well as changing a will. If someone has strong objections to such actions, they may pursue legal action.

The guardian has many responsibilities, and the right person needs to be in this role. When disagreements as well as strong objections arise, guardianship litigation may be the only route to pursue.

How to set up a guardianship in Illinois

Thu, 19 Aug 2021 19:53:00 GMT

Seeing a loved one grow old can be hard, especially when they start to lose focus and forget things. If someone close to you is in that situation, you can protect them by talking to them about guardianship. A guardian could manage their affairs and take care of them if they can no longer make responsible decisions. However, setting up a guardian can be complicated, as it involves certain processes and requirements that your loved one will need to comply with.

Who can get a guardian in Illinois?

Not everyone is eligible to get a guardian. The law in Illinois states that only a person with a disability can have someone take care of their personal or financial affairs. The law considers a person to be eligible for a guardian if:

They have a mental deterioration
They have a physical incapacity
They have a mental illness
They have a developmental disability

In some cases, the court can also grant guardianship for those with a substance or gambling addiction.

The court’s process

The court will only consider guardianship for your loved one if a certified physician files a report stating that they have a disability and need a guardian. You can get this report from the Probate Clerk of the court where the guardianship proceedings would take place. The report must include information about the nature of the disability and how it impacts your loved one’s ability to make decisions or function independently.

Once you have the report, you can file a petition for guardianship with the court. This petition must include the name and address of the proposed guardian, who must be at least 18 years old, sound of mind and a resident of the United States. After filing the petition , the court will set a hearing within 30 days. There must be at least a witness to support your loved one’s need for guardianship at the hearing.

The court will make its decision at the hearing after reviewing all necessary information about the case. Depending on the circumstances, the court may appoint a limited or plenary guardian to your loved one. A plenary guardian can make all the decisions for your loved one, while a limited one can only make certain decisions.

Protection for your loved one

If the guardianship proceedings are successful, the court will designate a guardian to your loved one. The guardian will have ultimate responsibility for their health care and finances. A responsible guardian will take care of them, manage their affairs and prevent someone from taking advantage of them and their situation.

How to explain guardianship to your loved one

Tue, 22 Jun 2021 19:27:00 GMT

You have decided that guardianship is the right decision for your aging parent, but now you don’t know how to approach them about it. As with anything else, you can get through them easier if you anticipate which questions they may have about becoming a ward. The following are some common concerns that arise when talking about guardianship and effective responses to them.

“Do I have a say in who I want as my guardian?”

Yes, wards always have a say in guardianship. The court will always consider the ward’s preference if the person they want for a guardian is:

A U.S citizen
Over 18
Mentally capable
A person that has not committed a felony

However, that the final decision will be with the judge. The judge will appoint the guardian that they think will act in the ward’s best interests, regardless of their relationship with the guardian.

“What if my guardian dies?”

Guardians may designate someone as the ward’s standby guardian so that they can take care of the ward if they die or are no longer willing or able to take care of them. If they don’t do it, the court will appoint a qualified guardian for the ward. The court will also consider the ward’s preference for a standby or successor guardian.

“What happens if my guardian is away or unavailable when I need them?”

Guardians may appoint a short-term guardian to ensure that someone will take care of the ward while they are traveling or in case they get into an accident.

“Can my guardian take advantage of their position?”

No. The court will ask the guardian to submit annual reports of the ward’s health status and the different services they may use. Estate guardians also need to send estate receipts and disbursements to the court. If the guardian misuses the ward’s estate, they will be punished by the court.

Your parent may be reluctant to hear about guardianship, but keep in mind that you are doing this out of love for them. Ultimately, it will be easier if you talk to them with patience and care.