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.



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.


Five Advantages of Living Trusts Over Wills

Web Admin - Friday, January 03, 2014

By Jay Andrew
JAA@DGAALAW.COM / (847) 934-6000

When preparing for the disposition of their property after they pass on, many people often find themselves questioning what wills and living trusts are and which document would better suit their needs. Wills, governed by the Probate Act of 1975, are legal documents that a person prepares prior to their death, which specifies how the rest of the family should distribute their property and handle the other affairs. Living trusts, which are controlled by the Trusts and Trustees Act, are legal devices that allow a person of the creator’s choosing, the trustee, to handle the disposition of their property. While everyone’s situation comes with unique considerations, living trusts may provide various advantages over wills. Five of the most important advantages include:

1. Living trusts can help your family avoid dealing with long, draw-out probate proceedings. Courts use probate proceedings to tie up a person’s loose ends, distribute their property, and generally enact their will. If you use a living trust, rather than moving through the court system, the trustee can distribute the property in accordance with the trust. This means that your family will not need to bring themselves to the courthouse and deal with the fees and hassle that come along with probate proceedings.

2. Living trusts also provide more privacy than wills do. While both wills and living trusts remain private throughout your life, the probate court will look at the will after you pass on, even if there are no formal probate proceedings. That means that the will becomes a matter of public record. On the other hand, your relatives will not need to file the trust with the court, so it can stay between them.

3. Living trusts also stand a better chance of surviving a legal challenge after your death, making it more likely that your final plans will be enacted to your specifications. The extra strength from a living trust comes from your ability to keep an active eye on it during your life. Because you would stay involved with the trust’s management during your life, relatives would find it harder to prove that you were not of sound mind when making the plan.

4. Living trusts make leaving property to minor children simpler too. Because minors cannot own most property, the trustee whom you choose can manage it for them, whereas a court appointee would likely handle the management if you chose to pass the property on with a will.

5. Living trusts have further benefits in the event that you become incapacitated while alive. Ordinarily, such circumstances would require relatives to petition the court for control of your affairs, and then the court would appoint a person to manage them. With a living trust, you can appoint a successor trustee to take over management in the event that you become incapacitated.

Decisions about testamentary dispositions can be complicated and involve multiple areas of law. If you are in the process of making such decisions, contact a Palatine estate planning lawyer today. We serve many areas in the northwest suburbs including Arlington Heights, Crystal Lake and Barrington.

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