When a family member or close friend passes away, figuring out what paperwork you need to find can be overwhelming and confusing. Especially if you are the executor of the estate, you will have several important responsibilities including paying the deceased person’s bills and taxes, manage their assets, obtaining a death certificate, and more. You will need access to several different documents in order to complete these tasks. If you loved one created an estate plan before they passed away, finalizing their affairs will be much easier than if they had no plans.

For this reason, and many others, everyone should have a will, trust, or other estate planning tool in place – even if they do not own a great deal of high-value assets. When you pass away with an estate plan, the burden on your surviving loved ones is significantly less that it would be if you did not have an estate plan.

Locate the Following Documents When a Loved One Passes Away

When a friend or family member passes away and you are responsible for settling their final affairs, there are many different pieces of information and paperwork you will probably need. These include but may not be limited to:

In 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:

There are many reasons why a couple may decide for one parent to stay at home with the children rather than pursuing a career. In some situations, a family simply cannot afford childcare, so a parent may stay home out of necessity. Other families may choose to have one parent dedicate their time to caring for children and maintaining the household. Today, the role of homemaker is not limited to women. In fact, more fathers are becoming stay-at-home dads, according to research published in Psychology Today. Regardless of a person's gender or their reasons for becoming a homemaker, divorce as a stay-at-home parent can seem intimidating, and it can cause a great deal of uncertainty about the future. If you did not work outside of the home during your marriage, and you are facing a divorce, you will want to work with an experienced family law attorney who can guide you through the legal process of divorce and help you create a secure future.

Know Your Rights

Even if you were not your family's primary income earner, you still have rights regarding the property you own with your spouse and the income that was earned during your marriage. Under Illinois divorce law, marital property will be divided according to the principle of “equitable distribution,” and all property acquired during the marriage should be divided fairly, regardless of who earned the income used to purchase it. The contributions each spouse made to the marriage will be considered when determining a fair settlement. As a homemaker, even if you did not earn a financial income, you have still made many valuable contributions to your family, such as child-rearing, performing household duties (cooking, cleaning, doing laundry), and managing family finances.

Infertility can be emotionally and physically draining on a couple, but unfortunately, it is not uncommon. The Centers for Disease Control and Prevention (CDC) estimates that nearly 16 percent of married women struggle with infertility, while almost 9 percent of women are clinically diagnosed as infertile. For those women who cannot have a child of their own, surrogacy enables a couple to raise their own biological child. A woman who chooses to serve as a surrogate can help couples achieve their dream of raising a family, while she herself may receive compensation for her services, making this both emotionally and financially rewarding. If you are considering becoming a surrogate, speaking with an experienced family law attorney can help you navigate the legal matters pertaining to this serious endeavor.

Requirements of the Surrogate

Because a surrogate is entrusted with carrying someone else's child, it is understandable that she will be carefully selected. To best protect the child, a prospective surrogate may undergo several medical tests to ensure that she is in the best health for carrying and delivering a baby. According to Illinois’ Gestational Surrogacy Act, a surrogate must:

Many people do not realize it, but taking steps to prevent identity theft is an important part of estate planning. Sadly, more and more criminals are taking advantage of grieving families by stealing the identities of deceased individuals. An identity thief can use a deceased person’s name and personal information to obtain and use credit cards that are in the deceased person’s name, apply for loans, falsify tax returns, and more. If your loved one’s identity is stolen after they pass away, you will be burdened with resolving the issue with law enforcement and financial institutions. Follow these steps to minimize the chances of your loved one’s identity being stolen after they pass away.

Tip #1: Notify Interested Financial Companies of the Death

When a loved one dies, it is usually up to the executor of the estate to contact financial institutions and close accounts. It is important to do this as soon as possible. Unscrupulous individuals can take advantage of the window of time between when an individual dies and when the decedent’s finances are settled. Contact every bank that your loved one had an account with and notify them that your loved one has passed away. You should notify the banks even if the deceased person’s spouse or another person is still listed on the accounts. You will also need to notify any lenders, mortgage companies, or investment companies your loved one had business with.

Tip #2: Close Credit Cards and Contact the Major Credit Bureaus

You will need to compile a list of all of your loved one’s credit card accounts so that you can close them. Looking through their purse or wallet can give you some information, but a better idea may be to request a copy of their credit report. You should also continue to monitor their credit report for suspicious activity. The Social Security Administration (SSA) will eventually notify the credit bureaus of your loved one’s passing but doing so yourself may expedite the process and help prevent an identity thief from opening a new line of credit under your loved one’s name. Sometimes a funeral director will contact the SSA on behalf of a family, but contacting the SSA, as well as the Internal Revenue Service, is ultimately the surviving family member’s responsibility.

Preparing a will is, for many people, the cornerstone of estate planning. For some, a will can be enough to cover much of their estate, while others may require additional planning instruments to meet their needs when they are gone. Regardless of the size of your estate, choosing an individual to oversee the execution of your will is one of the most important determinations that you will have to make during the estate planning process. A person or entity tasked with such responsibility is called an executor in Illinois—sometimes known as a personal representative in other states—and should be worthy of the trust that you have placed in him or her to protect your assets and property.

Duties of the Executor

An executor may be a financial institution, trust company, or other entity, but in most situations, it is an individual person, often a friend or family member. Upon your death, your executor will be responsible for:

• Locating and compiling your assets, if you have not already done so;
• Notifying creditors, and satisfying outstanding debts or other obligations with funds from your estate;
• Manage all assets during the process of probate;
• Distribute property to surviving spouse and dependents, as required by law; and
• Distribute remaining property to beneficiaries named in the will, or as required by law.

If your estate is valued at less than $100,000, Illinois law permits your executor to close the estate without court involvement. Estates that exceed a value of $100,000 must be handled through probate court unless other estate planning steps have been taken to avoid the probate process legally.

According to the American Psychological Association (APA), data from the National Survey of Family Growth shows that 48 percent of marriages end when they hit the 20-year mark. Despite this evidence and the colorful divorce horror stories we all hear from our friends, family members, and neighbors, the reality is that not all couples who make up these kinds of statistics experience a toxic divorce. Many spouses are not only able to make a mutual decision to end their marriage, but they are also capable of navigating the process amicably, even acting as a team to ensure a smoother experience for everyone involved. 

Avoiding a Contested Divorce

Not every divorce is messy, but those that are can have the power to wreak havoc on your emotional -- and sometimes physical -- well-being, especially if you do not know how to handle the conflict.

For most people, holidays are spent with relatives and friends. This may include large gatherings with extended family members or a small celebration reserved for parents to spend time with their children. Regardless of your family holiday traditions, they typically include time spent with your kids. This may seem like second-nature to married couples; however, those parents who are recently divorced must learn how to navigate these special days differently. To ensure that both parents can have quality time with their kids, it may be necessary to adjust parenting schedules during the holidays.

What Is Considered a “Holiday” By the Court?

It can be difficult for the court to address specific holidays, since they can vary based on families’ traditions and religious beliefs. However, there are guidelines provided to help those formulating parenting plans pin down what they consider a holiday. Thanksgiving and Christmas may be the two that come to mind, but there are various other holidays throughout the year that divorcing couples must consider. Holidays that result in three-day weekends, such as Labor Day and Memorial Day, can be listed as holidays in your parenting plan. Because the children are off of school, this can allow parents to spend extra time with their kids. 

It is hard to believe, but the winter holiday season is just about upon us once again. While Thanksgiving evolved as a celebration of the harvest and is, therefore, a fall holiday, it is also seen by many as the first of the winter holidays that also include Christmas, Hanukkah, and New Year’s. For the next month or so, families throughout the country will be getting together to eat, drink, and honor traditions that stretch back for many generations.

If your family will be getting together during the holidays, you might consider taking advantage of the opportunity to discuss your estate plans. Obviously, talking about what will happen after your death might not be the most comfortable discussion ever, but having the conversation now could go a long way toward preventing disputes and family infighting later.

Things to Talk About

This estate planning discussion does not need to last for many hours, nor does it need to be terribly detailed. The main goal is to let your loved ones know that you have created an estate plan and that the plan includes several important decisions. It is up to you to decide who should be included in the discussion, but most experts agree that your spouse and all of your children should be present, if at all possible.

It seems that our reliance on computers and the internet grows stronger every day. If you are like most people, you probably use email, text messages, and social media to keep up with friends and family. You may pay your bills online, use your phone to deposit checks, and have loads of photographs stored on electronic devices.

Have you ever thought about what will happen to your digital life after you pass away? It is becoming increasingly important to include directions about digital assets in estate plans. Failing to account for these items in your will and other estate plans can cause your surviving loved ones unnecessary stress and expense.

Take Inventory of Your Digital Assets

It can be overwhelming to consider how your digital assets should be managed after you are no longer able to do so yourself. To get started, take inventory of all of your important accounts and files. Make a list of any:

The divorce journey looks and feels different for every couple, with varying shades of complexity. From the amicable to the horrendous, divorces manifest in all kinds of distinct ways, depending on the circumstances surrounding the relationship and if children are involved. Something every divorce has in common, however, is that they are all emotionally charged events by nature. Regardless of how civil both parties are with one another throughout the process, everyone involved is bound to experience emotional pain and discomfort, especially as the divorce proceedings develop. Difficult issues can arise that must not only be discussed but also resolved between both parties in order to make progress and move forward.

Typical Setbacks and What to Do When They Happen to You

Conflicts, even small ones, are inevitable throughout the divorce process. Here are some issues that commonly cause setbacks for both parties during the transition and how to address them when they happen to you:

• Parenting time conflicts - If you and your spouse share children, you may quickly discover that you have different ideas of what parenting time should look like after the separation. It is not uncommon for couples to think they are on the same page regarding child custody issues, such as who will get the children on weekends and holidays, only to find they have drastically different feelings once the divorce is underway. Parenting time conflicts can turn into time-consuming, ongoing battles if not addressed early on. A positive course of action is to work with a well-seasoned, qualified family law attorney to create a fair, cohesive parenting plan to submit to the court for review. Should any modifications be necessary, your attorney can guide you through these changes from start to finish.

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Whether your child is in elementary school or is an adolescent in high school, they may experience the same emotional roller coaster that parents do when their family is going through a divorce. No matter how amicable or peaceful the decision to separate may be between parents, no one in the family journeys through the divorce process entirely unaffected. If your child is exhibiting certain signs, he or she may be having difficulty with the divorce. As a parent, it is important not to ignore these behaviors and instead address them head-on in order to maintain a healthy relationship with your child.

Recognizing When Your Child Is Having Trouble Coping

While studies show that civil, respectful relationships between divorced spouses can help support healthy healing for children of divorce, the emotional impact of the breaking of the family unit is still hurtful. Trouble coping is natural and to be expected in the midst of a family divorce, but if you notice any of the following changes in your child’s life on a day-to-day basis, it may be a sign that they are having an especially hard time adjusting to the change:

Wouldn’t it be nice if every individual was fiscally responsible and able to make good decisions about money? Of course it would be, but, sadly, that is the world we live in. In reality, countless people have a tough time with their finances and establishing healthy spending habits. For people like this, money tends to burn a hole in their pocket, so to speak, and is often spent in frivolous ways—at least according to their family members and friends.

This issue is frequently relevant in the realm of estate planning, as those who are creating an estate plan may have concerns about leaving a large inheritance to a child, grandchild, or another heir who has shown to be bad with money. They worry that the assets that they have worked hard to accumulate will be gone quickly, but they fear that potential family in-fighting that could result from cutting the would-be heir out of the estate plan entirely. If you are facing such a dilemma, you might consider using an incentive trust.

What Is an Incentive Trust?

By definition, an incentive trust is a trust arrangement through which you—the creator—can set conditions on how the assets of the trust will be distributed. Your conditions could be set to reward “good” behavior or to discourage behavior that you feel to be destructive or negative. For example, you could set up an incentive trust so that the trust’s assets will only be distributed to your named beneficiary after he or she graduates from high school and starts college. You could even increase the disbursement from the trust when the beneficiary completes his or her degree program.

The Illinois Department of Children and Family Services (DCFS) reports that 125,000 children are victims of abuse or neglect in the state of Illinois on an annual basis, and that one in five children will become a victim of abuse before they reach 18 years of age. In the midst of contentious divorce proceedings, or even long after a divorce has been finalized, it is not uncommon for DCFS cases to arise against one or both parents. Whether your former spouse, a neighbor, an acquaintance, or another family member makes a claim against you as a parent, any child abuse or neglect accusation can be life-altering and have far-reaching negative consequences on the entire family.

Protecting Yourself and Your Family 

Allegations of the mistreatment of your child are a grave matter, as they not only affect the relationship you share but also your child’s current and future mental health. The threat of such detrimental effects on your family leaves you with no choice but to address the allegations head-on. If you believe you are facing embellished or fabricated claims about your parenting, consider the following actions to better protect your family:

One of the primary objectives of the estate planning process is to make sure that your wishes regarding your property and assets are followed in the event of your death. While the estate planning lawyers at our firm can help you draft the appropriate documents and make the process as easy as possible, there will still be many decisions that are yours to make. For example, it can be tough to choose which people in your life will receive a portion of your estate—and how much they should receive! As you think about those you would like to include in your will or estate planning trusts, you may wish to consider:

Choosing Multiple Heirs

You have every legal right to simply name your spouse—or another important person, such as your child—as your sole heir and beneficiary. Just because you have the right to do so, however, does not mean you should. The purpose of your estate plan is to set things up for the future, which cannot be predicted. Naming just one heir will prove all but useless if something were to happen to that person. Then, your assets would suddenly become dependent on that individual’s estate planning choices. If you select several heirs, however, or set up contingency beneficiary levels, you will be able to retain more control over how your estate is distributed.

The Dynamics of Your Family

It is not really fair that you should have to think about how your family members will react to your estate planning decisions, but the reality is that you probably consider it. It may be tempting to have an “It won’t be my problem” attitude, but your choices are likely to affect how your family gets along in your absence. In your estate plan, you have the chance to promote unity or leave the door open for contentiousness. While you cannot necessarily predict emotional reactions, you can eliminate possible loopholes by taking reasonable steps ahead of time.

When it comes to divorce in the family, no one is fully immune to its emotional effects. Even the most civil of interactions between divorcing spouses can be deceiving. What might seem at first to be a friendly, mutual agreement may actually be subtly rife with tension. Conflict can simmer, and it may surface over time as the divorce proceedings unfold. By nature, divorce is a very emotional event in one’s life, and it tends to stir up a myriad of feelings for both parties, especially as the experience begins to feel more real and moves closer to its final stages. 

Common Triggers in High-Conflict Divorces

Conflict in divorce often stems from sensitive issues like money and child-rearing. These topics can be very touchy for everyone involved, even when both parties are working together to resolve the problems. Here are some of the most common sources of conflict for divorcing spouses:

It is not easy to think about what will happen to your personal belonging and financial assets after your death. However, the process of estate planning can be an important part of providing your surviving family members with the security and peace of mind that they deserve.

Unfortunately, it is not uncommon for families to become fractured and split by disagreements over the estate of a deceased loved one. Such disputes can lead to many years of bitterness between family members who were once close. In some cases, a family member might feel so left out that he or she files a challenge to the decedent’s will. While there is no way to fully guarantee that one of your family members will not contest your will, there are few things you can do to reduce the possibility of such action.

1.  Make Your Plan Early

Many will contests are filed on the basis that the testator—the person who wrote the will—did not have the mental clarity needed to execute a will. The longer you wait to write a will, the more likely it is that your advancing age, decreasing health, and other considerations might be used as “reasons” for contesting your will. Draft and execute your will long before your mental state could reasonably be questioned, and work closely with a qualified estate planning lawyer.

The difficulties that accompany divorce can be vast, leaving you to face a major learning curve as you navigate your life without your ex-spouse. From new living arrangements and daily routines to possible career changes and less quality time with your children, divorce in the family unleashes a whole range of uncomfortable emotions for everyone involved. Eventually, though, the healing process begins, and with time and experience comes the ability to adapt to post-divorce life. 

Paving the Way for Recovery

Psychologists remind those grieving from a divorce that human beings are incredibly resilient, but research also shows just how hard the recovery stages of the loss can be. The divorce process looks different from person to person, and each separation has its own set of challenges and heartaches. If you feel you are having an exceptionally hard time kick-starting the healing process, or if you feel stuck in the attempt to move on with your life, experts recommend the following:

There are many reasons and situations that require an update to your estate plan. Divorce is one of the most common and potentially catastrophic situations. Unfortunately, it is also easy to overlook or forget. There are many loose ends to tie up once the divorce process is complete, and with more to manage, estate planning can easily slip through the cracks. Unfortunately, if something does happen to you before you have made changes to your estate plan, assets may not go to the people and places you had hoped. Do not let this happen to you. Learn what and when you should update in an estate plan after divorce.

Changing Your Beneficiaries

If you have a 401K, IRA, or other retirement plan, the beneficiary listed on your policy should be checked upon completion of the divorce. Of course, you may have to split some of your savings with your former spouse, but the remaining amount should go to you. If you do not want the remainder to go to your ex upon your passing, and he or she is listed as the current beneficiary, it is important that you change this in your policy. Alternatively, if you wish your spouse to be listed as a trustee for your children, ensure the policy and your other estate planning documents reflect this wish.

Updating Your Powers of Attorney

If you are like most people, you probably have your spouse listed as your power of attorney (the person that acts and makes decisions for you in the event of incapacitation). Now, it is possible to keep your spouse as your power of attorney, but few divorces end quite that amicably. Instead, you might want to consider naming a close friend, a sibling, a parent, or an adult child. Make sure they are someone you can trust to carry out your wishes.

When it comes to the end of a marriage, there may be no such thing as an easy divorce. Even couples who remain civil and separate amicably do not escape the end of the relationship without experiencing hurt and pain. Having to let go of someone you loved, possibly still love, and shared a home and a life with can be irrevocably damaging, regardless of the circumstances. Still, some divorces are flat-out toxic from start to finish and result in ongoing conflict and heated legal battles. A contentious divorce is undeniably the most taxing kind, as it takes a toll on the whole family mentally, emotionally, and spiritually. 

Minimizing Divorce Stress 

Spouses can disagree about nearly everything in a contested divorce case, from the division of assets and debts, to spousal maintenance (alimony), to child support and parenting time. If you find yourself in high-conflict divorce and cannot manage to find middle ground on any topic, you may not be able to change the relationship dynamic, but you do have some power over how you handle the inevitable stresses of the divorce process. Psychology experts recommend the following activities to lighten your burden during this difficult transition: