The Illinois Transfer on Death Instrument: What is It, and Why Do You Need It?

Web Admin - Monday, July 24, 2017

Arlington Heights wills and trusts attorneysOne of the more frustrating aspects of estate planning is the risk of probate. In fact, most estate owners will do anything they can to prevent it from happening. They know that it can lower the estate’s overall value, and they would prefer that those assets go to their beneficiaries. If one of the items they want to transfer upon death is real estate, owners can opt for the Illinois Transfer on Death Instrument (TODI). What is this estate planning document, and when should you use it? The following information explains, and it provides details on how to determine if it may be appropriate for your estate planning needs.

What is the Transfer on Death Instrument?

Covered under the Illinois Residential Real Property Transfer Act, TODI documents lets owners transfer real estate property to their beneficiaries upon death, without the risk of probate. It does this through a non-testamentary transfer. Able to be used by single and joint owners, these documents have many of the same requirements as will drafting (owner must be of sound mind and not under duress, document must be prepared by the owner or an attorney, etc.), but they do not necessarily replace a will for owners with expansive estates.

Meeting the Validity Requirements

A Transfer on Death Instrument may be signed either by a single owner, or jointly. Keep in mind that it does not have to be signed by all owners, but it does not remove joint tenancy if another owner has not signed it. A TODI must also comply with all deed requirements, and it must state that the property transfers upon the owner’s death (or owners’, if joint signed). Further, the document must be recorded in the county or counties in which the property is located. Should the owner ever want to revoke the TODI, they are permitted to do so. However, if the TODI is joint signed, both parties must revoke the transfer to be considered a valid revocation.

Should You Use One?

There are many complexities and nuances in estate planning, and any one of them could determine whether a TODI is right for your situation. As such, it is highly recommended that estate owners seek legal assistance with their estate planning needs. Contact Drost, Gilbert, Andrew & Apicella, LLC. Skilled and experienced, we can help you find the creative solution that is most suitable for your needs. Schedule a personalized consultation with our Arlington Heights wills and trusts lawyers to learn more. Call 847-934-6000 today.

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.


IRAs and a Living Trust – What Every Grantor Should Know

Web Admin - Thursday, July 13, 2017

Mount Prospect wills and trusts lawyersAfter years, perhaps even decades of pouring money into your individual retirement account (IRA), it only makes sense to ensure it goes to the appropriate party if you do not live long enough to receive all the payments. Unfortunately, transferring an IRA to a living trust can be far more complex than most people realize. The following information can help you better understand how to avoid such consequences. You shall also learn where to find assistance with the process.

The Complicated Nature of IRA Accounts

Created under the Employment Retirement Income Security Act (ERISA) in 1974, IRAs were originally meant to provide employers with a way to offer affordable retirement benefits to their employees (at that time, most did not have the funds to cover a traditional pension plan). Now they are one of the most common types of retirement plans, and they can even be purchased by individuals with qualifying income and credentials.

Unfortunately, there are many rules, exclusions, limitations, and legalities involved with an IRA account – especially when it comes to the transfer or disbursement of the account. For example, IRAs can only be “owned” by the individual that started it. It cannot be transferred to a trust nor can it be owned by a business or other entity. Still, there are ways to transfer an IRA upon death. It just requires some thoughtful planning.

Transferring an IRA to a Living Trust

While one could simply name a beneficiary for their IRA account, some plan owners prefer the increased accountability of a trust. For example, if the grantor has a special needs child with their ex-wife, they may want to ensure that the funds are used to benefit the child directly. Just keep in mind that disbursement to a trust before the age of 59.5 is considered an early disbursement, which may result in an early payout penalty. As such, it is recommended that you speak with an experienced wills and trusts lawyer before naming a trust or changing the beneficiary on your IRA account. An attorney can also help ensure the right verbiage is used in your estate plan (i.e. “pass through,” “designated beneficiary,” etc.) to reduce the risk of any transfer issues.

Contact Our Mount Prospect Wills and Trusts Lawyers

Known for our creative solutions and personalized touch, the experienced Mount Prospect wills and trusts lawyers at Drost, Gilbert, Andrew & Apicella, LLC can assist you with your estate planning needs. Get started by scheduling a consultation. Call our offices at 847-934-6000 today.

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/deborahljacobs/2014/09/04/iras-and-trusts-what-you-need-to-know/#4fe760a2172b

Self-Directed IRA Accounts

Web Admin - Tuesday, June 14, 2016

self-directed IRA accounts, Illinois Estate Planning Attorneys

Often times, as real estate and estate planning attorneys, our clients ask us about owning or purchasing property through a self-directed IRA account. Here is a brief synopsis of how a self-directed IRA works.

Self-Directed Individual Retirement Accounts (IRA) are like traditional IRAs in that they are designed to allow investments to grow tax free or tax deferred over time. However, self-directed IRAs allow people to make alternative investments. The variety of investment options that are available for a self-directed IRA exceed the investment options of traditional IRA accounts.

How Do I Set Up A Self-Directed IRA Account? 

There are several steps involved in setting up a self-directed IRA account. 

1. The account must be established and funded. Like any IRA, you must sign up for the account with an investment firm or broker. The IRS requires that self-directed IRAs be held by a trustee on behalf of the IRA owner. Once you have signed up with a trustee or custodian, you will need to fund the account with initial capital so that you can make investments with your self-directed IRA account. The self-directed IRA account can be funded with new capital or a transfer from an existing IRA account. 

2. Choose an investment opportunity. You may choose what investment opportunity you would like your self-directed IRA funds to go into. There are many different types of assets that self directed IRAs can be used to invest in, yet there are also certain assets that specifically cannot be invested in by using a self-directed IRA. 

3. Request that the funds be made available from your self-directed IRA to make the investment purchase. Working with your self-directed IRA custodian or trustee, you can request that your self-directed IRA funds be made available to purchase your desired asset. The trustee or custodian will manage the transaction for you. 

4. Manage your self directed IRA investments. Again, by working with your self-directed IRA trustee or custodian, you can manage or sell your self-directed IRA investments. All transactions must be run through your self-directed IRA in order to remain in compliance with the IRS regulations. 

What Can I Own in My Self-Directed IRA Account? 

Self-directed IRAs can include investment options such as: 

- Stocks; 

- Bonds; 

- CDs; 

- Mutual funds; 

- Promissory notes; 

- Real estate; 

- Private mortgages; 

- Tax liens; 

- Precious metals; 

- Private businesses; and 

- Intellectual property. 

There are also several types of assets into which investment is not permitted with a self-directed IRA. Under IRS Code 408(m), prohibited investments include investment in collectibles such as stamps, art, gems, certain types of metals and coins, alcoholic beverages, and certain other tangible personal property. 

If you feel that a self-directed IRA may be helpful with your purchase of investment property or your estate plan, please feel free to contact one of our experienced Illinois estate planning attorneys today. Our firm serves the communities of Crystal Lake, Riverwoods, Kenilworth, South Barrington, Mount Prospect, Palatine, 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.


Why Do I Need a Living Trust? Won't My Simple Will Work Just the Same?

Web Admin - Friday, May 20, 2016

Why I Need a Living Trust, Illinois Estate Planning Attorneys When people begin the process of estate planning, they often have several questions about what course of action would be in their best interest, or in the best interests of their surviving family members and loved ones. One frequently asked question asks what the difference is between a simple will and a living trust. 

Is one option a better choice than the other? 

The answer really depends on your particular situation. However, for most typical family situations, a good choice is to use a living trust to transfer your property upon your death. 

When you prepare a will as your sole means of transferring your property upon your death, your will must go through the probate court, which can be complicated and your surviving family members could end up fighting over your will once you are gone. However, using a revocable living trust, which you can prepare while you are still alive, can help your family avoid probate after you pass on. Individuals who are looking to exercise more control over their property may find that a living trust is a useful estate planning tool. One of the estate planning attorneys at our firm can help you prepare a declaration of trust at your convenience.

Five Advantages to Using a Living Trust Over a Will

Below are examples of the advantages of using a living trust over a will. 

1. Property transferred through a living trust will not go through probate. Probate is a long, tedious, and costly process before the probate court where the validity of the will is demonstrated, all debts held by the decedent are paid off, and then the remaining property is distributed to the family members. The more complicated the decedent’s estate is upon his or her death, the more complicated and drawn out probate can be. 

2. Out-of-state property transferred through a living trust can avoid ancillary probate. When property is located out of state, instead of having to go through probate in each state, a living trust can allow for the property of out-of-state property without ancillary, or out-of-state probate. 

3. Getting the opportunity to manage your property during your lifetime. By being the settlor of your own living trust, you retain control over the trust until you decide that you want to hand over the reigns or you die. 

4. Living trusts remain confidential, wills are not. Since probate is a legal proceeding, if your will goes through probate, your will becomes part of the probate court records, which are made available for public inspection.  

5. The successor trustee is able to take over once the principal is disabled which is a huge advantage. The “seamless” transition of control over the trust and the trust corpus upon the disability of the grantor is a huge advantage of the trust over the will.

Getting Legal Help with Living Trusts

If you think that a living trust might be the best estate planning tool for you, please feel free to contact one of our experienced Illinois estate planning attorneys today. Our law firm serves the communities of Crystal Lake, Palatine, Des Plaines, Mount Prospect, Long Grove, Kenilworth, Riverwoods, 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.


2016 Changes to the Illinois Power of Attorney Act

Web Admin - Monday, March 14, 2016

Illinois Power of Attorney Act, Illinois Estate Planning Attorneys The Illinois Power of Attorney Act saw a handful of small, but important changes as of January 1, 2016. These changes help make the health care power of attorney short form easier to use, and gives principals (i.e., the person who executes the power of attorney) more control over what their agents can have access to during their life and after. If you are interested in preparing and executing a health care power of attorney, you can contact an estate planning lawyer today for professional assistance throughout each step of the process. 

What Changes Have Occurred to the Health Care POA Form?

Several significant changes to the Illinois Power of Attorney Act concerning health care power of attorneys include:

- The Option to Allow an Agent Access to the Principal’s Medical Records. The health care power of attorney short form has been updated and now includes a checkbox option that indicates that an agent is authorized, as of the date of the execution of the form, to have access to the medical records of the principal. Access to the principal’s medical records allows the agent to make well informed decisions about the principal’s health care.

- Decisional Capacity Has Been Defined. The changes to the Act and the power of attorney short form adopts the definition of “decisional capacity” from the Illinois Health Care Surrogate Act. “Decisional capacity” is the ability to understand and appreciate the nature and consequences of a decision that is being made concerning medical treatment or choosing to forego life-sustaining care and having the ability to reach and communicate an informed decision on the matter as determined by the attending physician. The change to the Illinois Power of Attorney Act places the attending physician into a position to make judgement calls regarding whether a principal has decisional capacity. 

- The Agent Can Pursue Applications for Government Benefits After the Death of the Principal. When a health care agent files for government benefits on behalf of the principal, but the principal dies and no administrator or executor was appointed for the principal’s estate, under the changes to the Illinois Power of Attorney Act, the health care agent can continue to pursue those government benefit applications. As a general rule, a power of attorney terminates with the death of the principal. However, the changes in the Power of Attorney Act now allow for this government benefits application exception. 

- Who Can Be a Witness for a Health Care Power of Attorney Has Been Updated. When a principal signs a power of attorney, another individual must also sign the power of attorney as a witness to the principal’s signature. The Illinois Power of Attorney Act is very specific as to which licensed professionals are not permitted to be a witness, which excludes the principal’s attending physician, physician assistant, advanced practice nurse, podiatric physician, dentist, optometrist, or mental health service provider. “Mental health service provider” has been changed to “psychologist,” as of January 1. 

If you would like assistance preparing and executing a health care power of attorney, or have any other estate planning needs, please feel free to contact one of our experienced Illinois estate planning attorneys today. Drost, Gilbert, Andrew & Apicella, LLC serves the communities of Crystal Lake, Palatine, Des Plaines, Inverness, Palatine, Schaumburg Riverwoods, Kenilworth, 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.



When Can a Trustee Be Held Personally Liable for Acts Done While Acting As a Trustee?

Web Admin - Tuesday, February 23, 2016

trustee held personally liable, Illinois Trust AttorneysAs a trustee, you are responsible for managing the trust and working with the beneficiaries. You have a fiduciary duty, or a legal obligation, to act solely in the interest of the beneficiaries by fulfilling the instructions of the trust as the trustor has required. A trustee must be respectful and careful, loyal, and impartial when serving as the trustee, and cannot take advantage of his or her trusted position to self-deal or glean benefits for him or herself from the trust. Developing a full understanding of what the legal obligations are as a trustee can be confusing, especially if you have limited legal experience dealing with trusts. An experienced estate planning and trusts lawyer at can assist you. 

A Breach of Fiduciary Duty Opens Trustees Up To Personal Liability

Trustees can be held personally liable for acts, or failures to act, as a trustee when the trustee does not carefully and diligently adhere to the trustee’s duties. When a trustee commits a breach of his or her fiduciary duty, the trustee opens him or herself up to liability for his or her actions taken while acting as the trustee. Examples where a trustee can be held personally liable for acts done while acting as a trustee include the following:

- A trustee may be held personally liable if there is a conflict of interest biasing the trustee’s judgment when it comes to the interests of the trust. Self-dealing, or making decisions or investments using the trust’s funds that in some way benefit the trustee either directly or indirectly will expose the trustee to liability;

- A trustee can be held personally liable for any interest and/or penalties that accrue for taxes filings that are made late. Liability exists because filing the appropriate tax forms on behalf of the trust is a responsibility that lies with the trustee. 

- A trustee could be held financially liable for losses on stock diversifications on behalf of the trust, or a failure to diversify, if losses are substantial. The trustee has an obligation to serve in the best interests of the trust beneficiaries, and failing to diversify when stocks are concentrated in a single company can lead to a significant loss in value of the trust. 

- A trustee can be held liable for commingling personal finances and the trust finances, especially in situations where the trustee is a family member to the beneficiaries. A trustee can avoid the appearance of impropriety by maintaining clear and thorough accounting records of the finances of the trust, and clear documentation regarding his or her personal finances. 

Speak with an Illinois Estate Planning Lawyer Today

If you have concerns that your trustee is in breach of his or her fiduciary duties, or if you are a trustee with concerns about a course of action for the trust you manage, please feel free to contact one of our experienced Illinois estate planning attorneys today. Our firm 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/ilcs3.asp?ActID=2129&ChapterID=61

Do Not Resuscitate Orders: What You Need to Know

Web Admin - Thursday, May 29, 2014

illinois dnr estate planning attorneyAdvances in medical science and technology have made it possible to revive patients after their heart or lungs have stopped working, often known as heroic measures. One of the most common ways of doing this is via simple mouth to mouth resuscitation or chest compressions. Doctors may also use an electric shock to restart the heart, or they may insert a breathing tube down a person’s throat to open the airway. Additionally, drugs like epinephrine may help restart a person’s heart in the event that it stops. The availability of technologies like these though has led to the proliferation of Do Not Resuscitate orders (“DNR”).

What Is a DNR?

A DNR is a type of “advance healthcare directive.” These are documents that people fill out prior to serious illness or injury that affect the type of care a person will receive. The DNR is a specific advance directive that instructs doctors not to perform heroic measures to resuscitate the person.

DNRs apply only to the narrow issue of resuscitation, so it is important not to confuse it with the two other common types of advance directives: living wills and healthcare powers of attorney. Living wills are a different type of advance directive that have broader applications. Living wills allow a person to record their feelings on a variety of life sustaining treatments like the use of feeding tubes and respirators.

Healthcare powers of attorney transfer the authority to make healthcare decisions to another person in the event that they are unable to make healthcare decisions for themselves. Ordinarily, this document will matter most in situations where a person’s condition is not serious enough to implicate the instructions in a living will, but when they are unable to speak.  

DNR orders are important medical documents that can have profound consequences on a person’s quality of life. Therefore, people should understand the different considerations that can affect whether to institute a DNR.

Elements to Consider

There are two important elements someone should consider when thinking about implementing a DNR: their current quality of life and the effectiveness of resuscitation. With regard to quality of life, resuscitation is often necessary because of ongoing medical problems that may or may not ever improve. These health issues can have a serious effect on a person’s quality of life and may even remove the desire to be resuscitated in the event of death. In fact, a survey of doctors revealed that, knowing the quality of life many resuscitated patients have, 88.3 percent would choose to implement a DNR. Part of that is likely because of the second concern, the effectiveness of resuscitation.

While CPR and other measures can often bring people back to life, it is not a perfect tool. Many CPR attempts result in broken ribs, and often, even though the person survives, the experience leaves them with neurological damage. While many people choose to forego DNRs, it is a very personal decision that should only be made after understanding all of the facts involved.

If you are considering implementing a DNR or another advance directive, seek the advice of an Illinois estate planning lawyer today. Our skilled attorneys help clients make these difficult decisions in towns across the northwest suburbs including Inverness, Long Grove, and South 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.

Using Virtual Representation Effectively in Illinois

Web Admin - Wednesday, November 06, 2013

When a trust is created, many different people may have an interest in how it is administered. For example, it is common for the trust documents to allow one person to benefit immediately (i.e. a spouse), with others to receive the assets upon that beneficiary’s death (i.e. the children). Those who are set to inherit later obviously have a stake in how the trust is managed. Mismanagement may affect their interests.

But what happens if those future beneficiaries are children, disabled, or otherwise unable to effectively advocate for their interests? One solution is to go to court and have a judge appoint a guardian to act in their interest. But that process often takes significant time, is costly, and may be ineffective if the future beneficiaries are unknown, like unborn children.

Reaching an Agreement

Is there a way to settle disagreements involving a trust without going to court? Fortunately, there is.

Illinois has a “virtual representation” statute which allows select individuals to represent the interests of others to craft agreements, often dealing with disputes regarding a trust. Essentially, this law allows different parties to create agreements which avoid litigation and are binding on some future beneficiaries.

When used properly, these settlement agreements can solve ambiguities in the trust document, delineate duties of the trustee, and account for many other administrative issues. As a result, these agreements can be incredibly efficient, eliminating the risk of prolonged legal battles down the road.

Many Illinois residents are well served by exploring use of virtual representation to reach a nonjudicial agreement. However, it is important to proceed cautiously, usually with the aid of an attorney. When not created properly, the agreement may not hold up. Under the law, to be valid the primary beneficiaries must all be adults and legally competent. The trustee must also be a party to the agreement. Notably, the agreement cannot change the terms of the trust. In addition, the primary beneficiary must not have a conflict of interest with those who are being bound. To qualify as a primary beneficiary the individual must currently receive income or principal from the trust. Alternatively, the individual must be eligible to receive a distribution of principal at a certain date.

Learn More

Do you want to learn more about using virtual representation effectively? These issues are quite complex, and so it is helpful to contact a Palatine estate planning attorney to make sure you are doing everything in your power to protect your long-term interests. The law office of Drost, Gilbert, Andrew & Apicella, LLC serves clients in Palatine, Arlington Heights, Crystal Lake and other suburban Chicago areas.

Estate Tax Changes: Is it Time to Revisit Your Living Trust?

Web Admin - Friday, October 11, 2013

The American Taxpayer Relief Act of 2012 (ATRA) introduced “portability” as a permanent law which has many Illinois residents asking about the need for customary trusts. Portability allows a transfer up to $5.25 million in federal tax exceptions to surviving spouses. Previously, a married couple could only make the best use of both spouses’ exception amounts by dividing asset ownership and establishing a credit shelter trust (or an A/B living trust) that initiates after one spouse is deceased. Accordingly, a married couple can pass on $10.5 million to their heirs free from federal estate taxes.

If you have an existing A/B trust plan drafted prior to the estate tax law changes it is most likely based on the Federal Estate Exemption amount, which when it was $650,000, probably worked for a “mid-sized” estate. Now that the exemption is $5.25 million, people need to revisit the funding/formula clause of their A/B trust plan so that there is money present for a surviving spouse. Using portability rules at the federal level can allow a surviving spouse to live off the estate without necessarily the need for A/B planning depending on the size of the estate.

Additionally, a deceased spouse’s estate will not be taxable if less than $5.25 million. A surviving spouse will be required to fill out an IRS Form 706. The United States Estate (and Generation-Skipping Transfer) Tax Return will allow the surviving spouse to use the deceased spouse’s tax exemption or it will be lost. This exception is not transferable, but an A/B living trust can take advantage of the exemption amounts for potential transfers to grandchildren.

Though portability simplifies federal estate planning, but not Illinois Estate Tax, the need for traditional trusts is still apparent with the use of a credit shelter trust. There is potential to lose a deceased spouse’s unused exceptions if the surviving spouse remarries. A credit shelter trust with a new spouse can be used to protect this exception before remarriage. Prior to a remarriage, a credit shelter trust may provide asset protection and secure inheritances for children of former marriages and save assets from an heir’s creditors.

Inflation can also effect an exception amount because the portability law is fixed, but again a credit shelter trust can offer a safeguard. Finally, a living trust can avoid the costs and delays of probate that can cause family grief after a family death.

Since portability is here to stay, now would be a good time to revisit your living trust to determine how the portability law effects inheritance distribution. Contact an Illinois estate planning attorney to make sure your assets are accurately dispersed as you intend.

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