Share Your Experience

five star review
X
Blog
Lombard Office
630-426-0196
Chicago South Loop
By Appointment Only

DuPage County estate planning attorneysOne of the most important purposes of estate planning is safeguarding the best interests of minor children. If you are a parent with a child under the age of 18, you should be aware of your options regarding guardianship. Although it can be incredibly difficult to think about, all parents should consider who they would want raising their child or children should something happen to them and/or the other parent. In the tragic case that parents pass away before their minor children, an estate plan will dictate who will have legal guardianship of them as well as address inheritance benefits. While it can be an emotional process, creating an estate plan gives parents peace of mind knowing their minor children will be cared for should the worst happen.

When Parents Pass Away Without an Estate Plan

When someone dies without a will, his or her property is divided according to Illinois law during probate court. Minor children can inherit property or wealth but are legally unable to receive the property or manage it before they are a legal adult. The inherited property is instead be managed by a legally-appointed guardian. If no estate planning documents addressing guardianship have been created, this guardian will be appointed by the court. Without an estate plan, it is possible that children’s inheritance and guardianship decisions will be in hands of strangers.

Options for Establishing Guardianship and Inheritance

There are many different ways to manage your children’s inheritance. One way is to establish a trust. A trust allows you to designate someone to handle wealth and assets which will eventually be given to your children. Trusts can be individually established for children, or a single family trust can be drafted. Through the trust, an individual or party is named as the successor trustee and will hold and manage property upon your death. Trusts allow you to decide how your property is invested, used, managed, and distributed to your children, not a court. Trust provisions that assign a reliable relative or friend to hold assets for your children can also be included in a last will and testament. You also have the option of appointing a guardian for your child through a Power of Attorney document.

...

Lombard estate planning attorneysWhen you stop and think about it, you probably realize that it would be a good idea to have an estate plan—or at least a will—in place. We all understand, at least at a basic level, that it is better for us to decide what will happen to our assets after our death than to let the state decide for us. Put simply, we know that we cannot take our assets with us when we die, so there should be a plan for how they will be handled.

Despite knowing all of this, more than half of American adults still do not have created even a will, let alone other estate planning instruments. Experts have conducted surveys and studies to determine why this is the case, as people may put off estate planning for a wide variety of reasons. Let’s take a look at some of the common ones:

Facing the Reality of Death

Advances in Western medicine and knowledge about nutrition and related concerns have pushed the average life expectancy upward in America over the last few decades. (In the interests of accuracy, it bears pointing out that the average life expectancy has dipped slightly in recent years, but we are still living longer than we did a century ago.) The obsession with longevity and quality of life makes many people hesitant to truly accept the reality that everyone will eventually die. The refusal to confront one’s own mortality can result in avoidance of any topics related to death, including estate planning.

...

Lombard estate planning attorneyAccording to several recent surveys, about 55 percent of American adults do not have a will. Of those, approximately 60 percent say it is simply because they have not had the chance to create one, but human nature suggests that there may be another motive. Many people are simply unwilling to consider their own mortality and to face the reality of death. Unfortunately, this can lead to serious consequences, even for those who do not have particularly large estates. Unfortunately, dying without a will or other estate planning tools can lead to some unpleasant consequences.

Depreciation of Assets

There are a number of reasons that assets may depreciate after death. It could be due to the red tape and time it takes to go through the Illinois probate system. Alternatively, valuable funds may need to be spent on tracking down family members that you might not have even had planned to inherit (or may very well be deceased). Taxes, which often end up being higher in the absence of a will, can also affect the value of the estate. Regardless of the reason, the absence of a will makes depreciation almost unavoidable.

Family Disputes

Families do not often intend to fight over items of value. Sometimes, it is simply a manifestation of troubling economic times. In other situations, it is because one family member has an emotional attachment to an item that is separate from its appraised monetary value. In still others, there are issues of speculation and feelings of being betrayed that may play a role. By taking the time to create a will, you can help your family members avoid such issues after your death.

...

Lombard estate planning lawyersMost people know that estate planning chiefly deals with the distribution of assets and personal wealth after a person passes away. A last will and testament or trust can enable an individual to decide how his or her hard-earned assets are divided among heirs. While having a will is a critical part of making sure your final wishes are fulfilled and your family is provided for, wills do not address what will happen if you become incapacitated due to illness or injury. This “incapacity planning” is often disregarded as unnecessary or too emotionally burdensome to manage, but planning for potential incapacitation is critical to having a comprehensive estate plan.

Do Not Burden Your Family with Making Health Care Decisions on Your Behalf

Have you ever considered what would happen if you became unable to make decisions about medical care or financial affairs because of a serious illness? Often, when people fall ill and are near death, their family members have to make excruciating decisions about death-delaying procedures. Deciding when and if procedures like mechanical ventilation, surgery, cardiopulmonary resuscitation (CPR), dialysis, antibiotics, or transfusions should be used can be a tremendously burdensome task for family members. However, those who have incapacitation plans in place save their family members from being forced to make blind decisions about financial matters and medical procedures.

Living Wills and Power of Attorney

In Illinois, individuals can make their desires regarding your medical treatment known by executing an advance directive such as a living will. A living will differs from a regular will in that it only takes effect when a person is incapacitated by a terminal illness and cannot speak for himself or herself. Another option to plan for potential incapacitation is to use a healthcare power of attorney. Assigning a trusted loved one to be your healthcare power of attorney is another way to plan for potential incapacitation. A healthcare power of attorney allows you to choose a representative who can make healthcare decisions for you when you are unable to do so.

...

Lombard estate planning attorneysSadly, as long as there are vulnerable people in the world, unscrupulous individuals will attempt to exploit that vulnerability. This is especially a concern for those with elderly or disabled relatives. When someone exerts “undue influence” on an elderly or otherwise incapacitated person, they try to convince that person to make a different decision than he or she planned to make. This often occurs with financial and inheritance concerns. If you believe that your relative was under undue influence when he or she created a will or other estate planning document, you may be able to bring these suspicions to probate court.

Elderly Individuals and Those with Dementia Can Be Taken Advantage Of

Probate is the verification process which every will goes through in order for inheritance directions to be carried out after an individual dies. If you have recently lost a loved one and you suspect that his or her will does not actually reflect his or her final wishes, you may petition the court to have the will invalidated. This is called contesting the will. In order to prove your relative was under undue influence, you will need to show that:

  • Directions for asset distribution in the will are much different from what people close to the deceased would expect. For example, if close family members were left out of the will with no explanation, this may be evidence of undue influence or coercion;
  • The deceased person was particularly reliant on or trusting of the individual who you believe exerted influence;
  • Illness or cognitive decline made the deceased person susceptible to undue influence;
  • The person who you believe influenced the testator took advantage of him or her and benefited from this deceptive intimidation; and
  • The suspected influencer substituted his own desires for that of the will-maker.

It is important to note that unsolicited opinions and casual suggestions are not the same thing as undue influence. If your relative was mentally and physically independent, you may have a difficult time proving that his final wishes were not his own.

...
Illinois State Bar Association DuPage County Bar Association Northwest Suburban Bar Association American Inns of Court DuPage Association of Woman Lawyers National Association of Woman Business Owners Illinois Association Criminal Defense Lawyers DuPage County Criminal Defense Lawyers Association
Back to Top