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DuPage County estate planning attorney wills and trusts

When a married person decides to develop an estate plan, the person’s spouse will almost always be involved in the process. But, what happens if you are ready to start making a plan for the future and your spouse is not? You know your spouse better than just about anyone else does, so you probably realize that nagging him or her about it will probably not work. Begging or threatening is not likely to be successful either. There are, however, some things you can do to start the estate planning process despite your spouse’s reluctance. In doing so, you might just be able to convince your spouse that there is no time like the present to plan for what lies ahead.

Start On Your Own

Obviously, it would be best for everyone involved if your spouse decided to get on board before you start your estate plan, but if he or she continues to refuse, you should look for the things that you can do by yourself. For example, you can draft a will that addresses the assets that you own and specifies what will happen to them upon your death. If your solely owned assets are substantial, you might consider working with an attorney to create various types of trusts as well. Additionally, you can appoint a power of attorney for health care or property without your spouse’s input.
At this stage, you should also compile a list of your joint accounts and investments. If you outlive your spouse, there is a good chance that you will be responsible for these assets—especially if your partner never makes an estate plan. This will also be helpful to your heirs and loved ones if you and your spouse were to both die within a short period of time.

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Arlington Heights family law attorney estate planning

Make no mistake about it, estate planning is not just for the excessively wealthy. Anyone—even those with smaller estates—can have their assets eaten up by various types of taxes and other obligations, especially if the items being passed down have appreciated greatly since they were acquired. However, there are some solutions that could allow you to keep more of your money within your family regardless of the current tax laws.

Tip #1: Check and Update Beneficiaries Frequently

It is surprising just how many people end up having no beneficiary or a previous spouse listed on life insurance policies, investment accounts, and even their wills. To an extent, it is understandable—life is busy, things change often, and before you know it, years have passed and you still have not gotten around to updating your beneficiaries.

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Arlington Heights estate planning attorney

A marriage can have a significant impact on your estate plan. Married couples generally create an estate plan together— all or most of the marital assets are typically passed onto the surviving spouse. Only when he or she passes does the estate plan take effect. However, this is not always the case, particularly if one of the spouses has children from a previous marriage, or if there is a large age difference between the spouses. Moreover, if you are in the middle of a separation or a divorce, which can take over one year to finalize in many cases, it can have a significant impact on how you should handle your estate planning. 

How Marriage Impacts Estate Planning

Marriage makes it easier for you to leave assets to your spouse after death. Even if you fail to do any estate planning or create a will, Illinois intestate succession states that a spouse inherits all of the intestate property. If there are children, then the intestate property is split between the spouse and children 50/50.  

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Lombard estate planning lawyerThe world of estate planning can be complicated, to say the least. If you have started researching your estate planning options, you may understandably be feeling overwhelmed. It can be challenging to know which types of estate planning tools will best help you meet your financial goals. You may have already decided to create a last will and testament but worry that a will alone will not satisfy all of your needs. One option to consider is a testamentary trust or “will trust.” For help determining which estate planning tools are best for your unique situation, speak with an experienced estate planning attorney.

What is a Testamentary Trust?

A testamentary trust is a trust that is in conjunction with a will. If an individual decides to create a testamentary trust, he or she will assign a trustee to manage and distribute his or her assets to the designated beneficiaries as per the directions in his or her will. Unlike a living trust, a testamentary trust does not go into effect until the trust maker, also called the trustor or grantor, passes away. Upon the trustor’s death, the executor of the estate is instructed by the trust provision in the will to create the trust. Although trusts typically avoid probate, the will must still go through the probate process in order for the authenticity of the will to be confirmed.

After probate, the trust goes into effect and the executor transfers the estate assets to the trust. The trust assets often include proceeds from the trustor’s life insurance policy or other sources as well. The trustee then manages the property owned by the trust until the trust expires and the property is distributed to the beneficiaries.

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Lombard trusts attorneysA trust is an estate planning tool that can hold property for the benefit of beneficiaries. There are many different types of trusts that can serve a wide range of purposes. Trusts fall into two main categories: revocable trusts and irrevocable trusts. A revocable trust is created by a grantor during his or her lifetime and may then be modified or revoked at any time. Irrevocable trusts, on the other hand, cannot be charged or revoked after their creation. However, there are certain situations in which an irrevocable trust can be modified or terminated.

Benefits of an Irrevocable Trust

Many people choose to use a trust to transfer assets to a beneficiaries instead of a will. The person who makes the will, called the grantor, transfers property to the trust and designates a trustee to manage the trust. Once the grantor passes away, the assets held by the trust are distributed to beneficiaries. The beneficiaries of a trust may be family members, friends, or entities such as nonprofit organizations. When the grantor transfers assets to an irrevocable trust, he or she relinquishes control of these assets and the assets are now owned by the trust. Because the assets are no longer owned by the grantor, they no longer influence the grantor’s tax liability or the value of his or her estate. Irrevocable trusts also offer protection from creditors and lawsuits.

Modifying an Irrevocable Trust

There are only a few different ways that an irrevocable trust may be modified or revoked. The trustee or beneficiary of a trust may petition the court to request a trust modification or revocation. The Illinois Virtual Representation Statute allows certain trustees and beneficiaries to alter an irrevocable trust without having to go through the court. The easiest and most straightforward way to change or revoke a trust is for the grantor and all potential beneficiaries to agree to the change and sign a consent modification document. A grantor may also be able to petition the court to revoke a trust based on mistake. For example, if there is evidence that the grantor was told that the trust would be revocable, the court may allow the trust to be terminated.

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