When the average person thinks about the concept of estate planning, they tend to think about wills, trust funds, inheritances, and other methods for passing assets down to the next generation. While these images are not really incorrect, they do not tell the whole estate planning story. In fact, there are many good reasons to create an estate plan that have almost nothing to do with possessions or money.  With this in mind, estate planning is an important consideration for any family, regardless of their wealth or overall net worth.

Reason 1: Privacy Considerations

Unless you plan ahead, Illinois law will likely require your estate to go through probate. Probate is the legal process through which an estate is settled when there are no alternative plans for doing so, and the process can be unpredictable, time-consuming, and cumbersome. You should also know that probate proceedings are usually matters of public record, which means that your affairs are available to be reviewed by the public at large. Through estate planning, you can minimize the effects of probate or even avoid it completely, thereby keeping your family’s personal matters private.

Reason 2: Minor Children

If something were to happen to you tomorrow, who would care for your children? If you answered, “My spouse,” let’s take the hypothetical situation a step further. If something were to happen to you AND your spouse tomorrow, who would care for your children? While you might have an idea regarding which family members might step up to help, it is important to have plans for your children’s care recorded in your estate plan.

Have you ever sat down with a member of your family and helped him or her apply for government-funded assistance programs? If so, you have probably seen firsthand that many of these programs have eligibility criteria that often include limits on income and owned assets. These requirements, in most cases, were established in order to ensure that those with the greatest need were served by these programs. However, the limits have also created unintended consequences for many people.

Such is often the case when an individual who receives benefits through Social Security, Medicaid, or other income-based programs is named as an heir in someone else’s will. It turns out that even a one-time transfer of property—which is generally what happens in inheritance situations—could have an effect on the heir’s eligibility to continue receiving benefits on which he or she may rely.

Understanding Government Aid Programs

Government assistance programs are virtually everywhere in today’s world, but many of them have been around for decades. Some even trace back to the “New Deal” measures of the 1930s, which were originally designed to help Americans who were most devastated by the Great Depression. As anyone who pays attention to politics can attest, government benefit programs are topics of constant debate and controversy, as legislators rarely agree on the future or the funding of such programs. Very few people, however, deny that these benefit sources are useful for those who are truly in need of medical care and financial help.

As we all know, not all marriages stand the test of time, and a divorce can be a messy undertaking. In previous posts, we have discussed in a fair amount of detail how a divorce can affect a person’s already existing estate plan. In most cases, the divorce will nullify any provisions that pertain to the person’s spouse. But, did you know that the terms of a divorce settlement agreement could create obligations for a person to meet in his or her estate plan in the future? A recent ruling by an Illinois appeals court shows how such a thing could happen.

A 33-Year Old Divorce Agreement

In the case in question, a couple got married in 1963, had six children together, and got divorced in 1982. As part of their divorce settlement agreement, which was entered as part of their divorce judgment, each party agreed to create a will that left 50 percent of their estate to be divided equally among their six children.

In 2014, while suffering from a bone marrow disorder, the husband executed a new will and restated a trust, of which his new spouse was named a co-executor and co-trustee along with another person. The husband died three months later.

Modern technology has assisted with the creation and growth of many families. Originally, natural conception and adoption were the only two options available to those who wish to have children or increase the size of their existing family. While adoption is a great option for couples to use, some parents wish to have a biological connection with their child and care for them through conception as well. Thankfully, medical advances have allowed families to have children through in vitro fertilization (IVF) using donor eggs. Egg donation is a treatment for infertile women who wish to physically bear a child. While this is not a brand new technology, it has continued to improve over the years. According to data from the Society for Assisted Reproductive Technology (SART), there was a 50.7% success rate for live births using donor eggs in the U.S. in 2017, proving that this version of IVF is a valid option for many families.

Requirements of the Recipient and Donor

For obvious reasons, IVF egg donation is not a parent’s first choice when trying to create a family; however, it is a good option for those who need help doing so. The process can cost a significant amount of money and involves a fair amount of medical treatments. This form of IVF is typically used for women with diminished egg quantity and quality. These include women with: 

• Premature ovarian failure;
• Poor response to ovarian stimulation;
• Poor egg quality;
• Low antral follicle counts on ultrasounds;
• High day 3 follicle-stimulating hormone (FSH) levels; and/or
• Advanced age.

Donors have a long list of requirements that they must meet before they are eligible. Females must be between the ages of 21 and 29 and be a U.S. citizen or have the legal right to work in the U.S. There are many health qualifications that must be met. The women must have a healthy BMI, no reproductive abnormalities, two ovaries, an excellent family health history, not be using any form of birth control and be a non-smoker/drug user. The woman must also have some form of college or trade/vocational certification.

There are almost countless ways that drafting a last will and testament can benefit you and your loved ones. With that in mind, it may surprise you to learn that only about 40 percent of Americans currently have a will or other estate planning document in place.

There are many reasons that people choose not to create a will. Some may not understand exactly what the purpose of a will is. Others may inaccurately assume that only wealthy people need a will. Perhaps the biggest reason that people procrastinate estate planning is because it deals with what happens if they become incapacitated or pass away. Although it can be an uncomfortable subject to consider, it is very important for everyone to have a will – regardless of wealth or age. When someone dies without a will, it is often their surviving loved ones who are most negatively affected.

You Relinquish Control Over Significant Financial and Personal Decisions

Even if you are not wealthy, you still own property and items which have value to you. Drafting a will allows you to decide how property, including sentimental items or family heirlooms, is divided among heirs. Without a will, your property is assigned to heirs according to Illinois state laws regarding intestate succession. It is very unlikely that the items most important to you will end up with the individuals you wanted them to unless you specify this in a will, trust, or other estate planning document. If you pass away without a will, your surviving loved ones will be forced to guess how you wanted your property to be distributed. This can be especially burdensome for people who are grieving a loss.

In every divorce involving children, parenting plans must be formulated. Parenting plans, commonly known as custody arrangements, divide responsibilities between each parent. They define responsibilities such as the time each parent is scheduled to spend with their child, who should be the one taking the child to medical visits, and which house the child will reside in. These are just a few of the many responsibilities required of a parent as well as those that are defined under parenting plans. While parenting plans are legally in place until the child turns 18 years old, it is almost impossible for them to last that long without a need for adjustments – situations change and so do children’s needs. 

Which Situations Warrant an Adjustment?

As with any legally-binding contract, there must be legitimate proof that an adjustment is necessary. Judges do not simply change parenting plans for the convenience of the parent. There are certain situations that will allow, and even prompt, judges to modify a family’s arrangement. The following are common examples:

• The child is not safe, especially in their residence;
  
• A parent is moving or relocating;
  
• The child is older and has asked for adjustments to be made;
  
• A parent’s work schedule has changed, affecting their ability or flexibility to care for the child;
  
• The family’s situation has changed, specifically their financial stability; and/or
  
• Their current arrangement is not being followed.
  

Some families have a combination of the circumstances mentioned above, while others have different reasons altogether. Regardless, each decision is situational and is dependent on the child’s best interests.

An unexpected illness or injury can happen to anybody. If you have been diagnosed with a serious health concern, you may worry about how medical decisions will be made if you cannot make them yourself. For example, if you fell into a coma, how would doctors know what type of medical treatment you do and do not consent to? In situations like these, a power of attorney for health care, or medical power of attorney, can allow you to choose a trusted representative who will make medical decisions on your behalf.

Responsibilities of a Medical Power of Attorney

Most people want to have a say in the types of medical treatment they do and do not wish to undergo. If you are worried that your health issues may worsen and you will not be able to speak for yourself in the future, consider choosing a representative through a healthcare power of attorney. This representative, called an agent or health care proxy, should be a person who you trust to follow your directions regarding medical treatment and care.

Your agent has the responsibility of working with doctors, surgeons, and other medical staff to ensure that you are only receiving the treatment that you have agreed to. Generally, a durable power of attorney for healthcare gives an agent the authority to make decisions on your behalf regarding medication, diagnostic tests, nutrition and hydration, surgery, and life-prolonging procedures like artificial ventilation and tube feeding. You will be able to more specifically define your agent’s decision-making authority when you fill out the healthcare power of attorney form.

The world of estate planning can become quite overwhelming for many people. Not only does estate planning force you to confront your own mortality, there is also a vast array of estate planning instruments for you to choose from. It can be difficult to know for sure what types of estate planning tools and documents will best allow you to reach your personal and financial goals. Two of the most common types of estate planning instruments are a last will and testament and a trust. While these tools can achieve similar goals, there are several importance differences between a will and a trust.

The Benefits of Drafting a Will

You may be surprised to know that only about 40 percent of Americans have a will, trust, or other estate planning document in place. When drafting a will, you must consider how your assets will be distributed to beneficiaries upon your death. Understandably, it can be very difficult for people to make plans for after they pass away. However, creating a will allows you to be in control of how your property is disseminated. You worked hard to earn the property that you have, so it is only fair that you should get to choose how it is distributed and who will receive it. Perhaps even more importantly, creating a will saves your surviving loved ones from the burden of having to guess how you would have wanted your property to be passed down.

Differences Between a Trust and a Will

A trust is similar to a will in that it allows you to dictate how your property is distributed to beneficiaries. However, a trust differs from a will in that it gives another party, called a trustee, the authority to manage your assets for the benefit of your beneficiaries. There are many different types of trusts which could benefit you and your family depending on your unique circumstances. These include a revocable trust, irrevocable trust, special needs trust, testamentary trust, charitable trust, and many more. Unlike wills, trusts are not required to go through probate, the court process which confirms the validity of the will and supervises the distribution of property. Probate is a state court proceeding which means that anyone can access information regarding the deceased person’s property, liabilities, beneficiaries, and more. Families who wish to keep this information private often use a trust in order to avoid probate.

Minors are accustomed to having a legal guardian who makes large decisions for them. While they may have some say in the matter, the final decision is left to the older party. Unfortunately, some individuals must experience this more than once in their life. Older people or those with disabilities often have to allow a legal guardian to take on the “official” responsibility of legal decision-making. Being the party taking on the guardianship responsibility can be emotionally and physically taxing, but recognizing that your loved one needs help could save them from making irreparable legal decisions.

Signs That Your Loved One Needs Help

Guardianships are most commonly issued when someone has a mental disability or when someone’s age affects their clarity of mind. However, just because a person has mental disabilities does not mean that they should have a legal guardian. The purpose of legal guardianship is to make legal decisions for another person when they have the inability to do so. Thus, potential guardians should evaluate their loved one and their ability to engage in the decision-making process. The Illinois Guardianship & Advocacy Commission suggests answering the following four questions to gauge your loved one’s mental capacity for making decisions:

1. Do they understand that a particular decision needs to be made?
   
2. Do they understand the options available in any given decision?
   
3. Do they understand the consequences of each available option?
   
4. After making the decision, are they able to properly inform appropriate parties?
   

My Loved One Needs Help, But Can I Be Their Guardian?

There are regulations on who can act as a legal guardian to ensure that the individual’s best interests are upheld. Any individual who is over the age of 18, has a “sound” mind, has not been convicted of a serious crime, and is deemed acceptable by the court is eligible to be a legal guardian. Potential guardians must be able to provide the court with proof of an active and suitable course of action for the individual. In some cases, agencies may be appointed as legal guardians – excluding banking institutions and those providing residential services to the individual. Whether private or public, agencies can often provide more active guardianship than the individual’s loved one since they do not have the same emotional ties to the individual. However, family or friends can make the best guardians in some cases since their desire to make good decisions for the individual has a personal connection behind it. 

Child support laws vary from state to state, especially in situations where one spouse remarries. Illinois uses an income shares model to calculate how much each parent must contribute to child support. The parents’ combined net income and the number of children will determine their combined child support obligation. Then, each parent will pay a percentage of the obligation that is proportionate to their percentage of the combined incomes. For example, a parent who makes $70,000 of a $100,000 combined income would pay 70 percent of the child support obligation.

The parent who has a majority of the parenting time will receive child support payments from the other parent, regardless of who has a greater income. However, a minority parent with a lesser income is not required to pay as much towards the children’s expenses as the majority parent with a greater income. The equation can change in a shared parenting agreement, which Illinois defines as each parent having at least 146 days with the children during the year. There are also situations in which a parent can request a modification of the child support payment. 

How Does Remarriage Tie In?

Illinois allows a parent to petition to modify child support when there is a change of circumstances that affects either:

There is a common saying that it takes a village to raise a child. The state of Illinois believes that all children have a right to receive financial support from both of their parents. When an unmarried couple has a baby, child support payments can help spread the child-rearing costs more evenly. Unfortunately, not every parent understands the necessity of paying child support. An unmarried father may think he is not legally obligated to provide for his or her child financially. When a mother wishes to collect child support from an uncooperative father, there are several steps she must take to do so.  

Paternity Must Be Established Before You Can Receive Child Support

Before a child support order can be entered, paternity must be established. There are three main ways that paternity can be formally established in Illinois:

It is no secret that adoption is expensive. Many families wish they could adopt but simply cannot afford the additional expenses that are tied to adoption. According to Child Welfare Information Gateway, private agency adoptions can cost anywhere from $5,000 to $40,000. This price tag does not include any of the costs associated with raising a child, which can steer couples hoping to start a family away from considering adoption. Foster care adoption is the most financially-friendly option available to potential parents. In many cases, the adoption gets funded by the state, with few fees involved aside from an attorney’s assistance in the legal process. There are even some instances that allow adopting couples to qualify for continued compensation.

What is Title IV-E Adoption Assistance?

Unfortunately, foster children get adopted at a much lower rate, especially those with special needs. The medical expenses or other costs that are unique to a special needs child can keep couples from considering taking them in. What many do not realize is that adoption assistance is available to parents of special needs children adopted through the foster system. Federal adoption assistance is known as Title IV-E, whereas state assistance is non-IV-E. Both forms of assistance can provide monthly maintenance payments, medical assistance, and other support until the child turns 18 or, in some cases, 21 years old. There are three criteria that must be met to qualify for special needs determination:

1. The state determines that the child cannot or should not return to their birth parents’ home;
   
2. A specific factor, condition, or a combination of the two has made the child more difficult to place for adoption; and
   
3. Unsuccessful efforts have been made to place the child without using adoption assistance.

What Makes a Child Eligible for Title IV-E?

The eligibility listed above must be met before a child will be considered to receive Title IV-E adoption assistance. There are five qualifications tied to Title IV-E; however, only one must be met to qualify for the assistance:

While many people assume estate planning only involves drafting a will or other estate planning document which dictates how assets are distributed upon an individual’s death, this is only one of many types of estate planning instruments which can benefit you. An advance directive, also referred to as a living will, medical directive, or advance decision, is a type of legal document which specifies how decisions should be made on behalf of an individual who is incapacitated by illness or injury. Read on to learn about how incapacity is defined for the purposes of these types of decisions in Illinois.

An Incapacitating Accident or Illness Can Happen to Anybody

If you are like most people, you have probably not given a lot of thought as to what would happen if you became unable to speak for yourself. Although we often think of incapacitation as something that happens to elderly people or those with Alzheimer’s Disease, the truth is that people of all ages can become incapacitated. For example, if you are in a serious car accident, you could suffer a head injury which leaves you in a coma. Who would make medical decisions on your behalf if this happened? Would you wish to be kept alive via artificial life support if there was little chance of recovery? These are the types of questions which can be addressed through an advance directive.

When Do Advanced Directives Take Effect?

There is not a specific set of criteria which is always used to determine when a person is incapacitated in Illinois. The situation will vary significantly based on the unique circumstances of the sick or injured person and his or her loved ones. If you are unable to speak for yourself and a loved one has petitioned the court to become your legal guardian, a judge will decide whether or not you are disabled to the point that you require a guardian. The Illinois Probate Act states that a disabled person is one who:

When a company reaches a certain level of success, the business owner will often turn the business into a franchise. Some of the most well-known brands in the world such as McDonald’s, Planet Fitness, and 7-Eleven are franchises. While there can be a certain level of risk in franchising your business, doing so is often the best way to spread your brand and make your business even more successful than it already is. Turning your business into a franchise is not a decision to take lightly, however. Read on to learn tips experts say will help you avoid pitfalls as you franchise your business.

Research, Research, Research

The most successful businesses are those that address the unfulfilled needs that customers currently have. If the market is already saturated with landscaping companies and your landscaping business does not offer anything new or different, opening a franchise could be disastrous.

It is critical to do your research before franchising. Find a unique niche that is not already filled by your competition. A good place to start your research is the International Franchise Association (IFA). The IFA has many resources that can help you get started in this exciting business endeavor.

Divorce mediation is a form of alternative dispute resolution that works for many couples seeking to end their marriage but wanting to skip the typical divorce proceedings. This type of alternative resolution becomes somewhat of a conversation between the spouses and a mediator. After the mediator explains the process, they will act as a neutral third-party. The session will typically last a few hours as a group, followed by the mediator meeting with each party individually to speak with them. This will allow the spouse to tell them anything they feel that they left out or any information that they felt uncomfortable sharing with their spouse in the room. 

A second session will be scheduled to make final decisions. Issues discussed are uniform to that of a divorce; however, there are supposed to be little to no arguments done in the mediation process. The allocation of parental responsibilities, child support, division of assets, and spousal maintenance are the main topics that are deliberated. The mediator will then draw up the plans based on the conversation between the spouses that lays out their divorce in front of them.  

Advantages of Mediation

Divorce mediation requires an amicable relationship between both spouses as the purpose of the alternative dispute resolution is to avoid conflict. While it does not work for all couples, many prefer mediation over typical divorce proceedings for a variety of reasons.

Whether the allocation of parental responsibilities determinations are done by negotiating with your spouse or become a “battle” in front of a court, this portion of divorce is often the most difficult. Every parent wants the best for their children, and it can be difficult to figure out what is “best” when you and your spouse are accustomed to co-parenting under one roof. Parenting cases can get ugly even when divorcing couples are on amicable terms.

Common Errors

The determination of your parenting plan is an important part of the divorce process to prepare for. An experienced attorney should warn you of the following mistakes:

1. Talking About the Case with Others: While it may be an instinct to confide in friends, this can lead to your demise in the end. You and your spouse probably still have mutual friends or friends that know each other, and gossip spreads fast. It is important to keep the details of your case confidential to avoid accidentally informing your ex about your defense tactics.
   
2. Letting Your Emotions Make Your Decisions: The purpose of the allocation of parental responsibilities is to put your child’s best interests forward regardless of your relationship with your spouse. The reason for your divorce does not necessarily reflect on their parenting ability or style. Friends or family members will frequently take your side and provide you with a multitude of reasons to fight for sole responsibility. However, it is important to remember that what is best for you may not be best for your child.
   
3. Using Your Children: Many parents can fall into the trap of hearing their ex’s business through their child or using their child as a messenger between parents. Placing your child in the middle of your divorce is an easy way to lose their respect and damage your relationship. This will be seen as bad parenting by a judge and can land you in hot water with your parenting arrangements.
   
4. Social Media As an Outlet: In the digital age, many people turn to social media for comfort or for a sense of validation from friends. The worst time and place to talk about your new life or vent about your old one is on social media. Your account can be used against you in multiple areas of your divorce proceedings.  

Contact a DuPage County Divorce Lawyer

The errors listed and explained above can hurt you in your divorce case, but the biggest mistake of all is failing to hire an experienced attorney for the allocation of parental responsibilities. No matter how many tips and tricks you follow, having a professional on your side is the best way to fight for your child.  At A. Traub & Associates, we will provide you with the legal advice you need while fighting for you throughout your divorce proceedings. If you are searching for help in your parenting case, contact our Arlington Heights family law attorneys at 630-426-0196.

When you hear the phrase “estate planning,” you might think of extremely wealthy people meeting with their lawyers and accountants to create wills and trusts that will facilitate the transfer of assets from one generation to the next. However, there is much more to estate planning than just wills and trusts. More importantly, estate planning is not just for those with extensive assets or complicated investments. Every adult should have an estate plan of some sort in place as a measure of protection in the event of a tragedy.

One estate planning tool that is often overlooked or misunderstood is the power of attorney. A power of attorney can be extremely useful in protecting your best interests should the unexpected occur.

Power of Attorney Basics

Using a power of attorney document, a person—called the principal—can appoint another individual to serve as his or her agent in financial matters. Illinois law also recognizes powers of attorney for health care which give agents the authority to make medical-relate decisions for the principals.

If you have started the process of estate planning, there is a good chance that you have spent some time thinking about how you will distribute your assets among your children, grandchildren, loved ones, and, possibly, charitable organizations. Depending on the size of your family or your circle of friends, it could be quite easy to overlook the pets that might be an important part of your life. Is it possible to look after companion animals like dogs or cats in your estate plan? In short, the answer to that question is yes.

What Are Pet Trusts?

Under Illinois law, a person is permitted to create and fund a trust for the stated purpose of providing for the care of “one or more designated domestic or pet animals.” The applicable part of the Illinois Trusts and Trustees Act (760 ILCS 5/15.2) does not specify the types of animals that can be covered, but a series of cases in Illinois courts have set precedents that allow pet trusts to cover dogs, cats, horses, and several other animals. Livestock, such as cows and sheep, are generally not eligible.

In order to establish a pet trust, you must specifically identify each animal to be cared for with funds owned by the trust. You will need to list the animal’s species and breed (if applicable), as well as its name, age, sex, and any other important factors like implanted microchips or tags. If your animal has any known health concerns, those should be noted as well so that the person you appoint to manage the trust—called the trustee—knows what to expect regarding the animal’s necessary care.

Most of us, at some point or another, have had those fleeting thoughts about a product or service that could serve as the foundation for a new business. On the other hand, maybe you have watched another company offer goods and services while knowing that you could do it better. So how does one go from the “idea” phase to the “action” phase of starting the actual business based on the idea? There are, of course, many steps, but the first important one is to determine whether or not the idea is truly marketable.

What Is Your Idea?

Not every business idea is going to grow into the next Microsoft or Google, and that is okay. A successful service or product is not necessarily going to break records or reshape the world as we know it. In order to be profitable, your idea simply needs to solve some type of problem for those you intend to reach.

With that in mind, you need to think about what your idea actually is. Is it a physical item that you intend to manufacture and sell? Is it an improvement on an existing product? Or perhaps, it is a service that you expect to provide for your clients in exchange for payment. No matter what you have in mind, a clear understanding of the idea is critical.

The benefits of proper estate planning cannot be overstated. Drafting a will, trust, or utilizing other estate planning documents puts you in charge of you and your family’s future in a way that nothing else can. Having a comprehensive estate plan also saves your loved ones the burden of making highly personal decisions on your behalf if you are incapacitated or pass away. Many married couples, especially couples with children, recognize the importance of estate planning. However, there are some situations in which one spouse is interested in estate planning but the other spouse does not want to participate. If you are married and interested in gaining the many benefits that come with a comprehensive estate plan but your spouse is disinterested, consider the following tips.

Consider Why Your Spouse Is Not Interested in Estate Planning

Estate planning can bring up many upsetting topics. Wills and trusts deal with what happens to your property upon your death. Advance medical directives dictate how healthcare and financial decisions should be made on your behalf if you are incapacitated through illness or injury. Naming a guardian for minor children forces you to consider who you would want to raise your children if you and your spouse pass away before the children are adults. It is completely understandable that many people would want to avoid these topics – especially if they do not understand the advantages estate planning brings.

Speaking with your spouse about why he or she does not want to participate in the estate planning process may give you insight about how to help them overcome their hang-ups. It is important to remember that while estate planning does deal with unpleasant topics, the peace of mind you will gain from having your plans in place far outweighs the discomfort of facing these topics.