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DuPage County estate planning attorneyIn Illinois, wills, trusts, and other estate planning documents must meet certain criteria in order to be valid. In order for the court to uphold a will, the person who created the will, called the testator, must fully understand the provisions contained in the will and the consequences of these provisions. If a testator was forced, under undue influence, or could not comprehend what he or she was doing when he or she signed the will, the will may not be legally binding. If the validity of the will iscontested and the court finds that the testator did not consent to the directions contained in the will, it could be thrown out completely. If you have a loved one with dementia who wishes to draft a will, you will need to take special precautions to ensure that the will is legally enforceable.

Testamentary Capacity Explained

The term “testamentary capacity” refers to a testator’s mental clarity and understanding. Testamentary capacity is also sometimes called “sound mind and memory” or “disposing mind and memory.” Testators as presumed to have testamentary capacity unless there is convincing evidence to the contrary. If your loved one wishes to create a will or other estate planning document and he or she suffers from dementia, Alzheimer’s Disease, or another illness that affects cognition, this could be grounds for his or her testamentary capacity to come into question.

Ensuring That Your Loved One Has Testamentary Capacity

Your loved one deserves to have his or her final wishes followed. In order to ensure that the will is not considered invalid due to testamentary capacity concerns, you should ensure that your loved one meets Illinois criteria for proving testamentary capacity. The Illinois Probate Act of 1975, states that an adult has the authority to draft a will if he or she “is of sound mind and memory.” Illinois appeals court case Beyers v. Billingsley addressed exactly what constitutes sound mind and memory in 1977. There are three conditions that must be met in order for a testator to have sufficient testamentary capacity. A person is of sound mind and memory for the purposes of estate planning if he or she can:

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Lombard estate planning attorneysWhen most people think about the concept of estate planning, they tend to think about money and “things.” Of course, there is nothing wrong with this thought, as estate planning does require a person to decide which beneficiaries will receive what property when the person dies. Property and debt considerations, however, are only part of the estate planning equation, especially if you have children who are under the age of 18. With the help of a qualified attorney, your estate plan can include your wishes regarding how your children will be cared for if something happens to you.

Guardianship Considerations

It is not easy to even ask the question, but what would happen to your children if you were, all of a sudden, out of the picture? Your spouse would most likely take on additional responsibilities for your children if you are married, but what if you are single or divorced? Or worse, what if you and your spouse were to die in the same tragic accident? Unfortunately, the realities of life are often extremely cruel.

If your children were suddenly left without any surviving parents, the court would be responsible for appointing someone to the role of guardian. In most situations, the court would choose a close family member, such as a grandparent, uncle, aunt, or someone else with whom your children already have a relationship. The court would do everything possible to make a decision based on serving the best interests of the children. However, you know your own family better than any lawyer or judge ever could, which means that you are in the best position to make such decisions for your children.

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Lombard estate planning attorneysEven though there are numerous benefits to creating a will, studies show that only about 60 percent of Americans have established a will, trust, power of attorney, or other estate plans. Many people use misinformed excuses to justify not having estate plans. They may incorrectly think “I am not rich, so I do not need a will” or “I can wait until I am older or in poor health to create estate planning documents.”

Estate planning does require a person to face some uncomfortable inevitabilities and can be tedious, so it is understandable that many procrastinate on this important undertaking. However, waiting too long to think about estate planning may mean that very personal decisions regarding your property, heirs, and even your medical care could be left up to others. 

Why You Need an Estate Plan Even If You Are Young and in Good Health

Anyone who drives a car on public roads must have auto insurance according to Illinois law. However, it is safe to assume that many people would have auto insurance even if it was not required by law. They know that car accidents happen across the country every day and that it is better to be safe than sorry. Generally, people understand how insurance protects them much better than how estate planning protects them. However, the two concepts are not entirely different.

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Lombard estate planning lawyersEvery person deserves to have control over the medical care they receive, including that which is provided at or near the end of their lives. Advance medical directives, such as a living will, give you the power to make certain decisions about your end-of-life care in advance, taking into account the possibility that you may not be able to make such decisions if and when they are necessary. Unfortunately, many advance medical directives are open to interpretation which could result in a decreased quality of life and unneeded suffering. There are some things you can do, however, to ensure that medical care is provided in accordance with your wishes, regardless of your condition at the time care is needed.

Death-Delaying Procedures

A living will is used primarily to specify the types of death-delaying procedures that you wish to be provided if you are ever diagnosed with a terminal condition and are unable to make care decisions for yourself. Death-delaying procedures refer to treatments and care that are postponing death in situations where healing or curing the condition is not possible. Such procedures include blood transfusions, artificial respiration, dialysis, and intravenous feeding or medications.

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Lombard estate planning attorneys“It’s what he would have wanted.”

We have all heard this phrase used by surviving family members of a recently deceased person as a justification for taking certain actions. Too often, we say such things to make ourselves feel better about the decisions we are making on behalf of the decedent, rather than knowing for sure that what we are doing is what he or she actually wanted. Unfortunately, many families are left to figure out what their loved would have wanted because that loved one never wrote down his or her wishes as a part of an estate plan. This is especially common regarding funeral arrangements as the thought of making such decisions can be extremely difficult.

Save Your Family the Trouble

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Posted on in Estate Planning

Lombard estate planning attorneyIt is understandable that many people are put off by the idea of sitting down and creating a will. Doing so requires a person to face the reality that he or she will not live forever. While this is something that we all know, it is often much easier to avoid confronting the idea in a direct way. Perhaps that is why as many as 60 percent of American adults have yet to draft a will or other elements of an estate plan. You should know, however, that by taking the time to write up your will, you could save your surviving family members a great deal of stress, aggravation, and money down the road.

At the risk of sounding cliché, the right time to draft a will is now. Every adult should have a written plan for what will happen to his or her property—no matter how simple or modest the estate may be—upon his or her death. That being said, there are certain events in a person’s life that should prompt him or her to think about the future and draft a will. If you already have a will, these same events should encourage you to review your will to make sure that it is up to date.

Obtaining New Property and Changes in a Financial Situation

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