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What Is Included in an Illinois Living Trust?

Web Admin - Thursday, December 31, 2020

Kenilworth estate planning attorneyWhen someone passes away, there is a legal process for administering and managing his or her estate, which is often referred to as estate administration. Instead of creating a will that outlines how assets will be distributed after death, a person can put those directives in another document, called a living trust. A trust is a legal document that designates a person or corporation to act as a trustee to administer the trust property according to the trust instructions. The individual who drafts the trust is considered the “grantor” or “settlor.” Those who receive assets or income from the trust are known as “beneficiaries.” The individual who is assigned as the trustee has a responsibility to uphold and manage the trust property for the beneficiaries named in the trust document. If you or someone you know is considering establishing a trust, an experienced estate planning attorney can help you draft this important legal tool.  

The Difference Between a Will and a Trust

A will only takes effect upon a person’s death. A living trust becomes valid during the grantor’s lifetime and can be either revocable or irrevocable. A living trust designates a trustee and explains the steps for administering the trust during a person’s life in addition to after his or her death. It is important to note that the trust document simply sets up the trust, which remains empty until assets are placed into the trust.

An individual can be the sole beneficiary of his or her trust while he or she is living. Alternatively, he or she can name a spouse or children as other beneficiaries. In the event the grantor becomes incapacitated due to a serious illness or injury, the trust designates a successor trustee to manage the assets. Upon the grantor’s death, the living trust instructs the distribution of assets like it would in a will. These assets may include cash, life insurance policies, individual retirement accounts (IRAs), stock portfolios, real estate, and other business interests. By putting who gets what into writing can prevent arguments or disputes between family members who believe they are entitled to any assets. 

The Benefits of a Living Trust

The benefits of a living trust include avoiding going to court for probate and guardianship proceedings (in the event a minor is involved). A living trust can be especially useful when someone owns real estate property in more than one state. Generally, real estate is probated in the state where it is located. There are people who may own real estate in one or more states, which usually requires probate to be administered in the owner’s home state. However, probate must also be conducted in any other state in which a person has property. Since probate is not necessary for property that is held in a trust, homeowners can forgo this additional administration as long as the out-of-state real estate is included in the living trust.

Unlike a will, a living trust is private since it is not a public record. 

Contact a South Barrington Estate Planning Lawyer

Thinking about and planning ahead for your future is important to prevent disputes among family members upon your death or if you become incapacitated. Depending on your circumstances, you may want to create a living trust instead of a will. Drost, Gilbert, Andrew & Apicella, LLC, are well-versed in Illinois law pertaining to estates. Our accomplished Long Grove estate planning attorneys will help you draft and review these essential legal documents. Call our office today at 847-934-8000 to schedule a free consultation.


About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.






Source:
https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=4001&ChapterID=61



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Having a Baby Soon? Why You Need to Complete Your Healthcare POA Before You Leave for the Hospital

Web Admin - Thursday, September 24, 2020
Inverness estate planning lawyer for healthcare POA

Thinking about the future in case something happens to you can be a daunting task. Many people do not like to think about what will occur if they pass away. However, estate planning is essential if you want your wishes to be carried out and avoid disputes between surviving family members. A power of attorney (POA) is a legal document that names the person who can speak for you if you become incapacitated and incapable of making your own decisions. A healthcare power of attorney is a legal document that allows someone to give a certain individual the authority to make decisions about his or her medical care. Healthcare POA can refer to both a legal document and a person who has been granted this type of legal authority. For women who are expecting a child, it is critical to have a healthcare POA named in case complications during labor and delivery leave them unable to make decisions regarding medical intervention for them or their newborn.  

What Does a Healthcare POA Cover?

A medical power of attorney can include stipulations concerning a wide variety of medical procedures, including hiring a personal care assistant and determining types of medical treatments in general. These directives might only be necessary for a temporary period of time, or they could be needed for a long-term health crisis. 

A healthcare POA will usually only go into effect if a person does not have the mental capacity to make decisions for himself or herself regarding medical treatment. An example could involve a pregnant woman who suffers complications while in labor after she arrives at the hospital, such as a heart attack or stroke. If she loses consciousness for any reason, she will be incapable of communicating whether she wants to be put on life-sustaining support such as a ventilator or feeding tube. Depending on the woman’s condition, any medical emergency could directly affect her baby’s health. If medical staff are faced with the decision to save either a mother or her baby, this is the type of choice that can be made ahead of time with a POA. 

Typically, married spouses are each other’s designated POAs. However, if a woman is unmarried and pregnant, her healthcare POA could be a parent, sister, cousin, or friend.    

Contact a Kenilworth Estate Planning Lawyer

Designating a Healthcare Power of Attorney is very important. If you are pregnant, it is essential that you complete this document before you deliver your child. This will ensure that if complications arise during childbirth, you will be given the medical treatment that you would have consented to if you were able to make that decision on your own. The knowledgeable legal team of Drost, Gilbert, Andrew & Apicella, LLC is prepared to help you draft these essential documents. Our skilled Riverwoods estate planning attorneys are well-versed in Illinois laws and how they may impact your unique situation. To arrange a free consultation, call our office today at 847-934-8000.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2113&ChapterID=60&SeqStart=2600000&SeqEnd=-1

How Does Illinois Estate Tax Differ From Federal Estate Tax?

Web Admin - Tuesday, April 10, 2018
Palatine estate tax attorneyNo matter the amount of property or assets you acquire over the course of your lifetime, you will want to be sure that these assets are properly distributed to your heirs following your death. Proper estate planning is essential for making sure your wishes are carried out correctly. However, one aspect of estate planning that is often not addressed is the estate tax, which applies to the transfer of a person’s assets to their heirs after their death, and residents of Illinois should be aware that they may be responsible for a state estate tax as well as a federal estate tax.

Understanding Illinois Estate Tax

When someone dies, their estate may be subject to estate tax if the value of their assets is above a certain threshold. The Tax Cuts and Jobs Act of 2017 increased the threshold for federal estate tax from $5.49 million to $11.2 million. The exemption threshold for Illinois estate tax is currently $4 million. Any estate with a gross value that is more than this amount is subject to Illinois estate tax, with the full value of the estate being taxable.

The tax rates for the Illinois estate tax are variable, ranging from 0.8% to 16%. This tax applies not only to the value of an estate, but also to taxable gifts made during a person’s lifetime. A person may be able to reduce the value of their estate, and thus reduce their amount of estate taxes, by making non-taxable gifts of up to $14,000 per person per year.

Unlike the federal estate tax, the Illinois estate tax exemption cannot be passed to a person’s spouse after their death. However, some of the Illinois estate tax may be deferred if a spouse’s assets are placed in a qualified terminable interest property (QTIP) trust. This type of “credit shelter” trust can be used to defer the difference between the Illinois and federal estate taxes. For example, in estate tax returns filed for decedents who died in 2017, a QTIP election of up to $1.49 million may be made, and estate taxes on this amount will not apply until the death of the surviving spouse.

Contact an Arlington Heights Estate Planning Attorney

Understanding the relationship between federal and state estate taxes and determining how to manage assets in a way that minimizes tax burdens can be a complicated matter. If you want to be sure that you will be able to pass the assets you have earned throughout your lifetime to your heirs, the skilled attorneys of Drost, Gilbert, Andrew & Apicella, LLC can help you create an estate plan that meets your family’s needs. Contact our Schaumburg estate tax lawyers today at 847-934-6000 to schedule a personalized consultation.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.



Sources:
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=609&ChapterID=8
http://illinoisattorneygeneral.gov/publications/pdf/Instruction_FactSheet2017.pdf
https://www.thebalance.com/overview-of-illinois-estate-tax-laws-3505297

Advance Directives, Living Wills, and Healthcare Power of Attorney

Web Admin - Thursday, February 08, 2018
Schaumburg estate planning lawyer advance directivesProper estate planning is essential for every family, and the decisions made during this process will allow you to protect your personal property and financial assets and pass them on to your heirs after your death. But in addition to considering what will happen after you die, it is also a good idea to plan for how medical decisions will be handled for you if you ever become unable to make these decisions for yourself. The documents detailing your instructions in these matters are known as advance directives, and the two most common directives are living wills and healthcare power of attorney.

Living Wills


With a living will, you can inform a doctor or other healthcare provider that you do not want them to use medical procedures which will delay your death if you are diagnosed with a terminal illness. A living will only goes into effect if you have an “incurable and irreversible condition [in which] death is imminent” and you are unable to communicate your preferences to your doctor.

Illinois law provides a standard form for living wills, but you may also create your own customized document, including specific instructions about certain situations or medical procedures you do not want your doctor to perform.

Healthcare Power of Attorney

A healthcare power of attorney document allows you to name someone who is authorized to make decisions for you if you cannot make decisions for yourself. You can give this person, known as your agent, broad authority to make decisions, or you can include specific instructions about what types of decisions they can make, what treatments you do and do not want to receive, whether you would like to donate your organs after your death, and how your remains should be disposed of.

Healthcare power of attorney will go into effect as soon as the document is signed, and your agent will continue to have authority to make decisions until your death, unless you include a time limit. If you have both a living will and healthcare power of attorney, decisions about death-delaying treatments will be made by your agent, unless they are unavailable, in which case your doctors will follow the instructions in your living will.

Contact a Schaumburg Estate Planning Lawyer


In addition to healthcare power of attorney and a living will, you may want to consider other advance directives: a mental health treatment preference declaration which will describe what treatments for mental illness you want to receive if you cannot make decisions for yourself, or a do not resuscitate (DNR) order which states that you do not want to be revived if you stop breathing or your heart stops beating.

If you want to know more about how to create the advance directives that will ensure your wishes are carried out correctly if you are incapacitated, the skilled attorneys at Drost, Gilbert, Andrew & Apicella, LLC can answer your questions and work with you to create the documents you need. Contact our Barrington estate planning attorneys at 847-934-6000 to schedule a personalized consultation.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.



Sources:
http://www.dph.illinois.gov/topics-services/health-care-regulation/nursing-homes/advance-directives
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2110&ChapterID=60

How the Tax Cuts and Jobs Act Affects Estate Tax

Web Admin - Wednesday, January 24, 2018
Barrington estate planning lawyer estate taxThe Tax Cuts and Jobs Act of 2017 represents the largest reform to the United States tax code in the past 30 years, and its changes will be felt in nearly every aspect of people’s lives for many years to come. While tax attorneys and financial advisors are still working to determine how this bill will affect individuals and businesses, one area in which the act’s changes are clear is that of estate tax. For people with significant assets, it is important to understand how these changes will affect their estate plan.

Estate Tax Exemptions

The federal estate tax applies to the assets which are transferred to someone’s heirs after their death. However, everyone is entitled to an exemption, and only the value of the estate above this exemption is subject to estate taxes. Prior to the passage of the tax reform bill, this exemption was $5 million, plus an inflation adjustment which varied from year to year (for 2018, the inflation adjustment was $600,000, allowing an estate to claim a total exemption of $5.6 million). 

The Tax Cuts and Jobs Act doubled the amount of the exemption, meaning that for an individual who dies in 2018, their estate can claim an exemption of $11.2 million. In addition, spouses are able to use a portability election to claim any unused portion of their spouse’s exemption. This means that married couples will effectively have a $22.4 million estate tax exemption.

Notably, this increased estate tax exemption is scheduled to sunset in 2025. People with significant assets can take advantage of this exemption before it ends and minimize their potential estate taxes by transferring their assets to their heirs prior to their death. As of 2018, gifts of up to $15,000 from an individual or $30,000 from a married couple can be given to individuals each year without being subject to federal gift taxes. A person’s lifetime estate tax exemption of $11.2 million can be applied to gifts above this threshold. 

Contact a Schaumburg Estate Planning Attorney

The increased estate tax exemption is just one small aspect of the Tax Cuts and Jobs Act, and there are a wide variety of other provisions that will affect people’s finances and their plans for distributing their assets to their heirs after their death. If you have any questions about how the tax reform bill will affect your estate plan, the skilled attorneys at Drost, Gilbert, Andrew & Apicella, LLC can help you understand the changes to the law and the steps you should take to provide for your family’s financial security after you are gone. Contact our Inverness estate planning lawyers today at 847-934-6000 to schedule a personalized consultation.


About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.



Sources:
https://www.forbes.com/sites/ashleaebeling/2017/12/21/final-tax-bill-includes-huge-estate-tax-win-for-the-rich-the-22-4-million-exemption/#7325a3cc1d54
https://www.fool.com/retirement/2017/10/29/the-2018-estate-tax-and-why-it-may-not-matter.aspx

Are Holiday Gifts Subject to Federal Gift Tax?

Web Admin - Thursday, December 21, 2017
Barrington estate planning and tax lawyerThe holiday season is a time of giving, but as you celebrate this time with your family and friends, you may need to be aware of a certain omnipresent aspect of American life: taxes. While it will likely only apply to people who earn a high income or have large financial assets, it is still a good idea to understand the Federal gift tax and the impact it may have on the gifts you give and your estate.

What Is the Gift Tax?

When a person transfers property to someone else without receiving something of equal value in return, this is considered a gift by the Internal Revenue Service (IRS), and it may be subject to gift taxes. The person who gives the gift to someone else (known as the donor) is responsible for filing tax forms for the gift and paying the gift tax.

Gift Tax Exclusions

Certain types of gifts are excluded from taxes, including gifts given to one’s spouse, gifts given to a political organization, and tuition or medical expenses paid on someone’s behalf. For other gifts, an annual exclusion threshold applies. That threshold is $14,000 for 2017, and the threshold for 2018 will be $15,000.

The annual exclusion applies to gifts given to an individual person, so if a donor gives multiple people gifts of less than $14,000 each, they will not owe any gift taxes. For spouses, the exclusion is doubled, so a married couple can give a gift of up to $28,000 without owing gift taxes.

In addition to the annual exclusion, everyone is entitled to a lifetime exemption known as the basic tax exemption. For people who die in 2017, that exemption is $5,490,000, and in 2018, the exemption will increase to $5,600,000. The taxable amount of gifts greater than the annual gift tax exclusion threshold can be applied toward this lifetime exemption, and taxes will not be owed on these gifts. However, any amount of the basic exemption used during one’s lifetime will be deducted from the amount of their estate that is exempt from estate taxes upon their death.

Contact a Schaumburg Estate Planning Attorney

Determining how gift taxes will affect your finances and your estate can be a complex undertaking. If you want to make sure you are protecting yourself and providing for your family’s financial security, the skilled attorneys at Drost, Gilbert, Andrew & Apicella, LLC can work with you to ensure you have met your legal requirements and have the financial resources in place that your family needs. Contact our Rolling Meadows estate planning attorneys today at 847-934-6000 to schedule a personalized consultation.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.



Source:
https://www.irs.gov/businesses/small-businesses-self-employed/estate-and-gift-taxes

Tax Advantaged Retirement Accounts: New Fiduciary Duties Imposed for Financial Advisors and Brokers

Web Admin - Monday, July 18, 2016

Illinois estate planning attorneysIn an era where individuals are increasingly being forced to handle their own retirement savings and financial future, it is important that financial advisors provide sound investment advice, and to not take advantage of hardworking individuals. In order to help protect America’s workers, the Department of Labor has imposed new rules that require advisors and brokers managing retirement accounts to put their clients’ interests first, which is a much stricter approach to retirement saving than in the past. These new rules are collectively referred to as the Conflict of Interest Rule-Investment Advice.  

You would hope that the people you trust when it comes to making investments in your retirement accounts would be honest and would represent your best interests. However, this was not always the case before the imposition of the new rule. Advisors sometime have a conflict of interest when it comes to giving financial advice, especially in situations where the advice is a one-time occurrence, such as when a baby boomer rolls over their ERISA plan investments into an individual retirement account (IRA) or 401(k).  

The new Department of Labor rules are intended to help protect IRA and 401(k) retirement account holders from brokers’ and advisors’ potential conflicts of interest. The new rules impose a fiduciary duty on advisors and brokers that handle retirement accounts so that the client’s interest takes precedence. These new rules can be confusing, if you have questions, you can contact one of the experienced lawyers at our office for help. 

The New Impartial Conduct Standard  

Prior to the new fiduciary rules, advisors and brokers were only required to make recommendations for products that were merely suitable for the client, even when the recommendation was not necessarily the client’s best option. Under the new rules, the definition of fiduciary investment advice was changed by amending 29 CFR 2510.3-21. So now if advisors or brokers make financial recommendations to clients in exchange for a fee for tax-advantaged retirement accounts, then they are obligated to comply with the new impartial conduct standard, which governs their fiduciary duty to their clients.  

There are a number of exceptions to the rule. For instance, a brokerage firm that provides educational information to its clients about a specific product or investment, would not qualify as a recommendation for the purpose of this rule. The new rule became effective as of June 7, 2016, and is applicable as of April 10, 2017.  

If you are interested in learning more about the new rules imposed by the Department of Labor, or would like assistance in understand which investments and advisor are covered by the rules please feel free to contact one of our experienced Illinois estate planning attorneys today. Our law firm serves the communities of Crystal Lake, Palatine, Inverness, Schaumburg, Long Grove, Kenilworth, Riverwoods, Des Plaines, Buffalo Grove, Barrington, and Arlington Heights. Call 847-934-6000 to speak to a member of our team.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


Source: 
https://www.law.cornell.edu/cfr/text/29/2510.3-21








VA Benefits and the Transfer of Assets to an Irrevocable Trust

Web Admin - Friday, November 27, 2015

VA benefits and irrevocable trust, Illinois employment lawThe Department of Veterans Affairs (VA) provides our nation’s veterans with important benefits after they have been discharged from service. In order to qualify for those benefits, veterans must meet certain requirements. For some veterans, it may be necessary to transfer assets into an irrevocable trust to lower his or her net worth. 

Qualifying for Pension 

The Veterans Pension benefit is a tax-free, monetary benefit for low-income veterans. In order to qualify, the following requirements must be met: 

1. Veteran must be 65 years of age or older or permanently and totally disabled;

2. He or he must have been discharged under conditions other than dishonorable;

3. He or she must have served, which generally involves a minimum period of active duty service, one day of which was during wartime;

4. Net worth must not be considered too substantial; and

5. Countable family income must be below the yearly limit as set by law. 

Veterans who are concerned about their level of net worth may consider forming an irrevocable trust. By creating an irrevocable trust, net worth can be reduced in order to qualify for the Veterans Pension. The VA does not assess a penalty for transferring assets as long as that transfer occurs prior to filing a claim or notifying the VA of an intent to file a claim. The determination of net worth is subjective—the VA has discretion in determining whether a veteran’s assets are too large to qualify for the Veterans Pension. 

An irrevocable trust can be used to hold assets that are provided by a veteran in order to reduce net worth. Importantly, a veteran claiming benefits (as well as his or her spouse) cannot be an income or principal beneficiary of the trust established in order to obtain VA benefits. This is because the VA requires that the rights to property and income from that property be actually relinquished to be considered a reduction of net worth. 

A second issue relates to whether to form the trust as a grantor trust or a non-grantor trust. The VA compares income reported to it with Supplemental Security Income (SSI) and Internal Revenue Service (IRS) income records through a process called Income Verification Match (IVM). Due to the nature of a grantor trust, there may be a discrepancy between income reported to the VA and income that appears with IRS filings. 

Under a grantor trust, all items within the trust are taxed to the grantor on his or her personal income tax return. Ordinarily, the grantor is the person who funds the trust, which, in this case, is the veteran claiming benefits. The VA may assume that the tax reported on the veteran’s tax return is based on income of the veteran, which may lead to lower (or complete denial of) benefits. Therefore, a non-grantor trust, in which the trust is responsible for any tax, is likely more desirable, in an attempt to avoid this potential issue. 

Forming a Trust 

If you would like more information on the formation of a trust, reach out to a skilled Illinois estate planning attorney today. Our firm proudly helps individuals in the communities of Inverness, Schaumburg, Palatine, Arlington Heights, Kenilworth, Long Grove, Riverwoods, Barrington, South Barrington, and Mount Prospect. We look forward to hearing from you. 

About the Author:

Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.



Source:
http://www.benefits.va.gov/pension/







Importance of Funding Your Living Trust

Web Admin - Friday, September 25, 2015

funding your living trust, Illinois estate planning attorney

The creation of living trusts in order to transfer property to beneficiaries is becoming increasingly popular. One of the major benefits of using a living trust is the avoidance of probate. However, if the maker of the trust (called the grantor) does not actually fund the trust with property or other assets, the grantor’s estate will likely have to go through probate. 

Living Trusts 

A revocable living trust is a form of estate planning that allows a grantor to determine who gets his or her property upon their death. A trust that is revocable can be altered, changed, or revoked during the life of the grantor. Upon the grantor’s death, the trust becomes irrevocable. After the trust becomes irrevocable, it cannot be changed and the trustee must follow the distribution plan made by the grantor. Alternatively, an irrevocable living trust is one that cannot be revoked once it is finalized. Both of these forms of trusts are called “living” trusts because they are formed during the life of the grantor. 

Living trusts provide the benefit of the avoidance of probate, which is a court process in which a determination is made as to how property is distributed upon the death of an individual. Probate, which is governed under Illinois law by the Probate Act of 1975, is often expensive and time-consuming. Additionally, it often means that property is not divided in accordance with how the deceased individual would have desired. 

In order to avoid probate, the grantor must correctly form the trust and fund the trust. A trust is formed through the creation of a written trust document that is signed by the creator of the trust and a notary public. The trust document must include a list of the property that is covered by the trust, name a trustee, and name the beneficiaries of the property included in the trust. 

The grantor must transfer the property that is to be covered by the trust into the trust. For most property, a trust is funded simply by including a list of covered property in the trust document. However, real estate must be retitled in the name of the trust in order to be correctly transferred. A trust that has not had assets properly transferred to it is called an unfunded living trust. 

Unfortunately, it is not uncommon for grantors to fail to fund their trust. This may occur when a grantor plans to get around to it in the future but never actually does it. Alternatively, a grantor may incorrectly believe that the creation of the trust document was sufficient. For example, in the case of real estate, the creation of the trust document is not enough due to the retitling rule. If a trust is not properly funded, the goals of the estate plan will not be achieved and the estate will have to go through probate. 

Help with Estate Planning 

Planning for what will happen to your property and assets is important for you and your loved ones. If you would like more information or help in forming a living trust, contact an experienced Illinois estate planning attorney today. Our firm proudly serves the communities of Inverness, Palatine, Schaumburg, Arlington Heights, Long Grove, Kenilworth, Riverwoods, Barrington, South Barrington, and Mount Prospect.

About the Author:

Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


Source:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104&ChapterID=60


Capital Gains Tax and Trusts

Web Admin - Thursday, June 25, 2015

capital gains tax, Illinois estate planning lawyerToday, increasing numbers of individuals are turning to trusts as opposed to wills for their estate planning. Trusts are often advantageous over wills because they allow for greater flexibility and control over assets. It is important to know the impact of capital gains tax on the assets that fund a trust.

Step-up in Basis

Capital assets include items like a house, stocks or bonds, and machinery. When one of these items is sold, the difference in the sale price and the original purchase price is considered a capital gain or loss. If an item is sold and a profit is realized, the capital gain is taxed.

If an individual forms a grantor-type trust, all appreciated assets that are transferred into the trust (items like real estate or a stock portfolio) are eligible to receive a step-up in basis upon the death of the grantor. Basis is the cost of the property or asset. A step-up in basis is a readjustment of the value of an asset to its current value for tax purposes upon inheritance of the asset. This is important because it minimizes the beneficiary’s capital gains taxes going forward.

For example, let’s say a grantor purchased an asset for $50 and transferred it to a trust. The grantor’s basis is $50, meaning if the asset were to be sold, the difference between $50 and the sale price would be the amount subject to the capital gains tax. Now, let’s say that at the time of the grantor’s death, the value of the asset is $100. The beneficiary receives a step-up in basis, meaning his or her basis is $100, not the $50 that the grantor originally paid. This is important because if the beneficiary decides to immediately sell the asset for $100, she will not be subject to any tax. Further, any sale in the future after the asset increases in value will be subject to tax on the difference between the sale price and $100, as opposed to $50 if a step-up in basis was not available.

An important consideration is when the step-up in basis is applied. For example, how is the step-up in basis determined if a married couple each owns half of an asset through the use of separate trusts and they die at different points in time? If the deceased spouse’s share is transferred to the surviving spouse, the surviving spouse will receive a step-up in basis. When the surviving spouse dies and the trust is inherited by the beneficiaries, they will also receive a step-up in basis.

Finally, it is important to be aware of the Medicare tax on “unearned” net investment income. This imposes a 3.8 percent tax on the net investment income, which includes capital gains, of joint filers who have a modified adjusted gross income of greater than $250,000 or single filers with an adjusted gross income of greater than $200,000.

Help Forming Your Trust

If you would like more information about forming a trust, you should reach out to an experienced Illinois estate planning attorney today. Our firm proudly represents individuals throughout the northwest suburbs, including areas such as Crystal Lake, Inverness, Schaumburg, Kenilworth, Long Grove, Palatine, and Barrington.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


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