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Treatment of Same-Sex Spouses and Civil Union Partners Under Illinois Probate Law

Web Admin - Wednesday, November 21, 2018
Rolling Meadows same sex couple estate planning lawyerThe state of Illinois has recognized civil unions of same-sex couples since 2011 and same-sex marriage since 2014. But it was not until 2015, when the U.S. Supreme Court issued its ruling in the case of Obergefell v. Hodges, that all states were required to allow and recognize same-sex marriages. These changes over the past decade have had a major impact on estate planning for same-sex couples.

Differences Between Illinois’ Civil Union Act and Marriage Fairness Act


The 2011 Illinois Religious Freedom Protection and Civil Union Act (750 ILCS 75) declares that a party to a civil union “is entitled to the same legal obligations, responsibilities, protections, and benefits” that the law of Illinois affords to spouses. This law did not, however, mention children of civil union partners or other family members.

The 2014 Religious Freedom and Marriage Fairness Act (750 ILCS 80) more forcefully declares that its purpose is to provide same-sex and different-sex couples and their children “equal access to the status, benefits, protections, rights, and responsibilities of civil marriage.” It goes on to say that parties to a marriage and their children “shall have all the same benefits, protections, and responsibilities under law.”   

Conversion of a Civil Union to a Marriage in Illinois


Civil unions were not automatically converted to marriages when the 2014 law was passed. Rather, the Civil Union Act was modified in 2014 to allow the voluntary conversion of a civil union to a marriage at no cost. Through May 2015, a couple could have their civil union redesignated as a marriage just by applying to a county clerk. The effective date of the marriage would be the same as the effective date of the earlier civil union. 

As of June 2015, parties to a preexisting civil union must apply for a marriage certificate and have the marriage solemnized and registered as a marriage. The effective date of that marriage would be the date the marriage was solemnized.

Impact of a Civil Union vs. Marriage on Estate Planning


Spousal inheritance rights are the same in Illinois, whether you are legally in a same-sex civil union, same-sex marriage, or different-sex marriage. Still, if you entered into a civil union, you may want to convert that to a marriage, just to ensure that your relationship is recognized as a legal marriage nationwide and internationally. For example, when partners are citizens of different countries, an actual marriage certificate will generally be needed in order for the spousal relationship to be recognized for immigration purposes. In addition, the same-sex marriage law specifically references “children” and “family” of the couple.

Also, if you entered into a civil union at some point, and the relationship broke up, you should be sure that the civil union was legally dissolved; the process is the same as for the dissolution of a marriage in Illinois. If the civil union was not legally dissolved, or converted to a marriage followed by a divorce, one partner could still claim the right to inherit from the other.

Inheritance and Related Rights of Same-Sex Married Couples Recognized Nationally


Same-sex couples gained numerous inheritance-related benefits as a result of nationwide legalization of same-sex marriage, such as:

- The couple no longer has to worry about moving from a state where same-sex marriage was recognized to a state where it was not.

- If one spouse dies without a written will or trust, the other will now automatically inherit under the laws of their state of residence.

- When one spouse dies, the other can claim the marital deduction for federal gift and estate tax purposes.

- When one spouse dies, leaving the other as beneficiary of a qualified retirement account, the surviving spouse can roll over those assets into their personal retirement account, allowing for optimal asset protection and income tax planning. 

- As a living individual in 2018, you can make inter vivos gifts of up to $15,000 per person per year with no tax implications. However, you can gift as much as you want to your spouse. 

- Spouses can make medical decisions for one another without requiring a power of attorney for health care.

Consult a Palatine Same-Sex Marriage Estate Planning Lawyer


Whether you are married to a same-sex or different-sex spouse, particularly if you have children, you should really have an estate plan, including basic documents such as advanced healthcare directives and powers of attorney. Talk to an experienced Schaumburg estate planning attorney at Drost, Gilbert, Andrew & Apicella, LLC. We can help you develop a will, trust, and other legal plans that will provide emotional and financial security for you and your family for the long-term. Contact us at 847-934-6000 for 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.


Sources:
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3294&ChapterID=59
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3525&ChapterID=59

Why Top 15% Income Households Need to Start Estate Planning Now

Web Admin - Wednesday, October 24, 2018
Schaumburg estate planning lawyer wealth protectionYou do not have to be Jeff Bezos or Elon Musk to need an estate plan. You do not even need to be earning $1.4 million a year, which is the average annual income of the top 1% of Illinois households. However, if you are fortunate enough to be in the top 15%, you will likely amass enough assets to need an estate plan. For perspective, a 2017 household income over $140,000 per year puts you in the top 15% of U.S. households; over $170K puts you in the top 10%, over $225K in the top 5%, and over $431K in the top 1%. If you fall into these ranges, here are three reasons why you should start an estate plan: 

1. You may think it is too early to be worrying about an estate plan. It is not. 


If you belong to the Baby Boomer generation, you are now age 54 to 72. Gen Xers are age 39 to 53. You may be in great health today, but you cannot predict what will happen tomorrow. You do not want to leave your family in chaos, trying to figure out what to do in the event of a sudden illness or death. Peace of mind is a gift you give yourself and them when you make the time to create an estate plan.

2. You may think your estate is not big enough to require “planning.” It may be bigger than you realize.


Have you totaled up your assets lately? Your home, vehicles, whole life insurance, retirement accounts, other investments, and personal property may add up to more than you realize. You may think that you will use up your entire retirement savings during your lifetime, but many people will not. If you have invested wisely, you may be able to live off the earnings and hardly touch the principal. Also, your primary home, vacation home, or other assets (artwork, jewelry, gold coins) may appreciate in value more than you expect. With an estate plan, you can make sure your assets are distributed according to your wishes.

3. You may think that a simple will that divides your estate equally among your children is enough. But have you allowed for the unexpected?


An experienced estate planner will point out the types of unexpected events that can occur and the important contingencies that you should cover in your plan, such as: 

- What if one of your heirs becomes disabled or cannot be trusted with money due to an addiction? You may want to place your money in a trust with scheduled distributions, with a trustee who has the authority to distribute more or less money if circumstances warrant.

- What if someone does not want the asset you want to give them? For example, you may want to make sure your lake cottage stays in the family, with each child owning an equal share. But what if one of them moves far away or cannot afford the maintenance costs? Also, when it passes to the next generation, what happens if one child has three offspring and another has just one? Is it fair for one grandchild to have a 50% say in future decisions while the other three grandchildren split the remaining 50%? An experienced estate attorney will anticipate and know how to solve for such problems. 

- What if you outlive your presumed heirs? Do you have siblings or other relatives you would like to provide for?

- What if your final estate is likely to be substantially larger than you think your heirs need? Are there any charitable causes you would like to support, perhaps only if your final estate exceeds a certain amount?

Consult a Kenilworth Estate Planning Lawyer


These are just three of the reasons that an income earner who is in the top 15% should be starting their estate plan now. For more information, contact the experienced Inverness estate planning attorneys at Drost, Gilbert, Andrew & Apicella, LLC. We will help you develop a savvy estate plan that will provide emotional and financial security for you and your family. Contact us at 847-934-6000.

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://dqydj.com/united-states-household-income-brackets-percentiles/
https://money.usnews.com/money/retirement/baby-boomers/articles/2018-07-05/6-common-myths-about-estate-planning
https://www.kiplinger.com/article/retirement/T021-C032-S014-10-surprisingly-common-estate-planning-mistakes.html

The Illinois Will Probate Process: Settling an Estate

Web Admin - Friday, September 21, 2018
Arlington Heights estate planning probate lawyerThe passing of assets from one generation to the next is a long-standing tradition, typically governed by a written will. When a person with a large estate dies, a legal process called probate ensures that the terms of the will are properly carried out. The process of probating a will in Illinois is controlled by the Illinois Probate Act and the rules of the circuit court in the decedent’s county of residence.

When an Illinois Will Must Go Through Probate


An Illinois estate must be probated when its total value exceeds $100,000 (excluding jointly-held properties and accounts with named beneficiaries, which transfer automatically upon death).

The Process to Probate a Will in Illinois


1. Petition for Probate - The first step is to file a Petition for Probate with the circuit court. This petition includes the will itself, the current estimated value of the estate, the names and addresses of heirs, and other information necessary to begin settling the estate. The executor named in the will or their appointed attorney must file this petition within 30 days of the decedent’s death and send copies to all heirs.

2. Hearing to Open Probate - The court will conduct a short hearing to officially validate the will and admit the will to probate. At the hearing, heirs may enter their objections to any part of the petition, such as the validity of the will itself, the person(s) designated to administer the estate, or the person(s) designated to act as personal fiduciaries for any underage or disabled heirs. The court will approve the executor and issue letters testamentary that authorize the executor to act on behalf of the estate.

3. Inventory of Assets - The executor has the responsibility to locate and secure all assets of the estate. A written inventory must be made, listing all bank and investment accounts, real estate, and personal property of significant value. Appraisals may be necessary to establish date of death” values for each piece of real and personal property.

4. Payment of Debts and Taxes - The executor must notify all creditors of the decedent and pay outstanding bills, including property taxes and any other expenses necessary to protect the assets of the estate. The estate must remain open for at least six months to ensure that all creditors are identified and paid. The executor must also file final state and federal tax returns for the decedent.

5. Petition for Distribution of the Estate - Upon conclusion of the prior steps, the executor must provide an accounting of their work on the estate, including all receipts and disbursements. The executor will then ask the court for permission to distribute the remainder of the estate according to the terms of the will. (When there is no question that the estate contains more than sufficient funds to pay off all debts, some distribution of assets may occur before the final accounting.) 

Consult a Palatine Estate Planning Lawyer


Ensure that your hard-earned assets are distributed to your heirs according to your wishes. An experienced Barrington estate planning attorney at Drost, Gilbert, Andrew & Apicella, LLC can help you develop an estate plan that will meet your specific goals and, after your death, ensure that your will is probated efficiently. Contact us at 847-934-6000.

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/ilcs5.asp?ActID=2104&ChapterID=60
http://www.cookcountycourt.org/ABOUTTHECOURT/CountyDepartment/ProbateDivision/Part12RulesoftheCircuitCourt.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

Important Considerations When Drafting Your Will

Web Admin - Thursday, April 23, 2015

drafting your will in Illinois, Palatine estate planning lawyerThe passing away of Chicago Cubs’ legend Ernie Banks was a sad day for baseball fans everywhere. Unfortunately, his death sparked a controversy within his own family after his longtime caretaker claimed that he had executed a will. Recently, a court upheld the validity of the will. Here, we focus on some of the reasons why this occurred and the steps all individuals should take to best protect their will from a challenge.

Banks’ Will

Following the death of Banks, his widow claimed that he did not have a will. However, his caretaker came forward and claimed that Banks had created and signed a will three months prior to his death. The will gave all of his assets to the caretaker. Banks’ widow argued that he was not of sound mind and that the caretaker coerced him into executing the will. In order to prove the validity of the will, two paralegals testified that they witnessed Banks sign it. Further, the paralegals testified that Banks appeared fine and even mentioned during the notarization that he was not leaving anything to his family. The court ruled that the will was valid, though an appeal is likely.

Executing Valid Wills

A person who executes a will is known as the testator. For a will to be valid under Illinois law, it must be in writing and signed by the testator. Further, the signing of the will must be witnessed by two people and it must be notarized. Additionally, the testator must be of “sound mind and memory” at the time the will is created and signed. At the signing, a testator may want to document that he or she has the mental capacity to execute the will. This may include obtaining the opinion of a doctor that establishes the testator’s capacity.

It is important for the testator to state clearly his or her wishes as to the disposition of the property. The testator may want to include his or her reasoning for the way in which their assets will be distributed. In the case of Banks’ will, he affirmatively stated he was leaving all of his assets with his caretaker. Further, he included a statement that he intentionally was leaving nothing to his family. This was an important provision because it made clear that an omission had not occurred. In other words, it signaled that Banks had not simply forgotten about his family.

Many people find it difficult to discuss end of life situations. However, this can be helpful in ensuring that there will not be any challenges to a testator’s will after the testator dies. Speaking with the people included, and those excluded who may have an expectation to be included, in the will can help make sure there are no surprises when the testator dies. If Banks had disclosed to his widow the existence of his will and they had had a discussion regarding it and the reasons he was not leaving her anything, her challenge would have been even less likely to succeed.

If you would like more information or help creating your will, you should speak with an experienced Illinois estate planning attorney. Drost, Gilbert, Andrew & Apicella, LLC proudly represents clients throughout the northwest suburbs, including Inverness, Palatine, and Long Grove.

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.

Changes to the Illinois Health Care Power of Attorney

Web Admin - Friday, January 23, 2015

healthcare power of attorney in Illinois, Palatine estate planning attorneysHealth care powers of attorney are some of the most serious estate planning decisions that people will have to make throughout the course of their lives. Most estate planning decisions relate to structuring assets and ensuring that children and relatives are properly cared for. Health care powers of attorney are different. They are legal documents that allow people to determine how they want their loved ones to make health care decisions on their behalf in the case that they are unable to themselves. These sorts of documents are regulated by the state, and the Illinois legislature recently updated the law that governs health care powers of attorney used in the state, adding new notice requirements and changing the calculus for end of life decision making.

New Notice Requirements

One of the biggest changes that the update made was a complete revision of the notice that precedes the actual health care power of attorney form. The new form breaks the notice provision down into nine headings that have questions beneath them. These headings include:

  • - What Are the Things I Want My Health Care Agent to Know?
  • - What Kind of Decisions Can My Agent Make?
  • - Whom Should I Choose to Be My Health Care Agent?
  • - What If My Agent Is Not Available or Not Willing to Make Health Care Decisions for Me?
  • - Will Happen If I Do Not Choose a Health Care Agent?
  • - What If There Is No One Available Whom I Trust to Be My Agent?
  • - What Do I Do With This Form Once I Complete It?
  • - What If I Change My Mind?
  • - What If I Do Not Want to Use This Form?

Each of these sections include questions and answers that allow the power of attorney form to be filled out in different blocks.

Changes to End of Life Decision-Making

The law also made some important changes in the way that it frames end-of-life decisions. The biggest change in this manner is the fact that the new power of attorney form now distinguishes quality of life from quantity of life. Essentially the new form provides a check box for people to decide whether it is more important for them to have a life they can live fully or whether they would be willing to extend their lives for a hope at making a recovery. The goal of this new distinction is to help people better express what sorts of values their health care should be trying to accomplish.

Estate planning is a complex field that covers everything from health care decisions to future tax liabilities. If you have questions about this new health care power of attorney or some other aspect of estate planning, contact an Illinois estate planning lawyer today. The law firm of Drost, Gilbert, Andrew & Apicella, LLC serves clients in many northwest suburban locations, such as Long Grove, Riverwoods, Palatine, Arlington Heights, 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.

Homestead Rights in Illinois

Web Admin - Thursday, October 23, 2014

homestead rights in Illinois, Palatine estate planning lawyerWhile there are many well known government programs and policies designed to provide relief during difficult economic times, there are other laws people can take advantage of that are less commonly talked about. One of these laws is known as “homestead rights.” Homestead rights are a protection provided by Illinois law that provide certain immunities from debt collection efforts by creditors. However, these immunities are not absolute, so it is important for people exercising their homestead rights to understand the exact limitations of those rights.

What Homestead Rights Are

Homestead rights are a statutory protection against creditors designed to help people avoid becoming homeless because of changing economic circumstances. The rights allow the debtor to exempt $15,000 worth of real estate from the collection efforts of creditors or their agents. Additionally, if a married couple owns the home, then they can pool their homestead rights together to protect the same house. This gives them an exemption of $30,000. This exemption also survives the death or desertion of a spouse. The exemption can also be passed down to the children of the married couple, at least until the youngest child turns 18.

Illinois' homestead laws are also slightly different than the laws in some other states. Many states choose to restrict the amount of acreage that a person can use the homestead exemption on in addition to capping the total value of the property. Illinois has no such acreage cap. This means that the size of the property is irrelevant to the homestead rights, and that it is purely an issue of how much the land is worth.

What Homestead Rights Do Not Protect

Notably, homestead rights do not provide absolute protection against every type of creditor. For instance, the state legislature wrote an exception into the protection for the purposes of state taxes, so if the creditor is the state of Illinois then the exemption does not apply. Similarly, homestead rights are created by state law, which federal law can supersede, so they provide no protection against the federal government's collecting taxes either. The rights also do not function in many circumstances where the money owed is related to the property itself. A person who uses the house as collateral for a mortgage does not get protection if their home is being foreclosed. Additionally, if the person owes money to contractors for doing work on the home, then the homestead rights do not apply to those debts. Further, the homestead rights can be signed away in writing, which would also remove their protection.

If you have questions about your homestead rights or some other property interest, talk to an experienced Palatine, Illinois estate planning attorney today. Our firm helps clients in many northwest suburban towns including Barrington, Long Grove, and Arlington Heights.

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.

The Duties and Responsibilities Associated with a Power of Attorney

Web Admin - Thursday, October 16, 2014

power of attorney rights and responsibilitiesIllness, injury, or age can often render a person unable to take proper care of their finances and their property. As a solution to this issue, Illinois law allows people to set up a power of attorney for property. This is a legal document that lets a person, the principal, designate a trusted agent to handle the principal's property with the principal's best interests in mind. This document gives the agent a variety of legal powers over the principal's money and property, but it also comes with legal duties that the principal must fulfill. Agents need to be aware of both of these things to properly complete their jobs without bringing liability onto themselves.

The Powers Granted

The powers granted to an agent under a power of attorney vary depending on the principal's wishes, but in 2011 Illinois created a general form with 15 default powers that a principal can bestow upon an agent. These powers include:

-The authority to buy or sell real estate on behalf of the principal;

-The authority to deal with banks and safe deposit boxes for the principal;

-The authority to represent the principal in insurance transactions; and

-The authority to buy and sell stocks and bonds for the principal.

The form also includes extra sections to place limitations on these powers or to add extras. For instance, the principal can allow the agent to buy and sell stocks and bonds, but also forbid them from selling a particular stock. Similarly, the power to give gifts on the principal's behalf is not included in the default form, but a principal could add it if they so chose.

The Duties of the Agent

Importantly, by taking on these powers, the agent enters into a “fiduciary” relationship with the principal, meaning that they have a duty to act in the principal's best interests. In addition to that general duty, the law also imposes other, more specific duties on the agent. For instance, the agent is required to act in accordance with any estate plans that the principal has put in place to the extent possible. Agents also have a duty to keep good financial records of any “receipts, disbursements, and significant actions conducted for the principal.” The law also forbids agents from taking certain actions. These forbidden actions include commingling the principal's funds with their own, taking loans from the principal, and exceeding the authority granted by the power of attorney.

Powers of attorney are complex legal documents, and managing them incorrectly can open the agent up to legal liability. If you are considering a power of attorney, contact an Arlington Heights estate planning attorney serving the northwest suburbs to better understand your duties as well as other potential estate planning options. We assist clients throughout Inverness, Palatine, Schaumburg, Long Grove, Kenilworth, Riverwoods, and the rest of the Chicagoland area.

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.

Trust Payments and the Capital Gains Tax

Web Admin - Wednesday, August 27, 2014

capital gains tax in IllinoisThe capital gains tax exists as a way for the government to tax the income that flows to investors from certain investments. In general, the capital gains tax applies to the sale of most assets other than inventory. This includes the sale of things like stocks, bonds, and real estate. The current capital gains tax rates vary depending on a person's income bracket. According to the IRS, the capital gains tax for people in the 25 percent, 28, percent, 33 percent, and 35 percent income tax brackets would be 15 percent.

People paying taxes in the highest bracket, 39.6 percent, would pay 20 percent in capital gains tax, and people in the other, lower tax brackets do not pay capital gains tax at all for most capital gains income. Additionally, the Affordable Care Act also introduced a further 3.8 percent tax on capital gains income for people earning either $200,000 a year as single filers, or $250,000 a year as married filers, which went into effect at the start of 2013.

This capital gains tax can interact with trusts in complex ways, and trustees should be aware of the issues created by the capital gains tax and trusts. First, trustees should be aware of how capital gains affects the way that they manage K-1 tax forms. Second, trustees should keep in mind the interaction between capital gains and the income distribution tax deduction that trusts are allowed to take.

K-1 Forms

K-1 forms are a type of tax form that exists to help the owners of pass through entities fill out their personal income tax returns. Pass through entities are entities like S corporations and some LLCs that do not pay taxes themselves, but instead pass the taxes on to the owners. Trusts, strictly speaking, are not actually pass through entities since the trust is responsible for paying some taxes, but the beneficiaries may also owe taxes based on distributions to them from the trust, so they often receive a K-1 form. As far as the need to report capital gains income on a K-1 form, that depends on the specifics of the trust. As a default rule, the capital gains and losses stay with the trust itself, but the trust instrument may choose to pass those along to the beneficiaries, which would result in the trustee needing to add them to the K-1 form.

Capital Gains and the Income Distribution Deduction

Capital gains may also have an effect on the trust's income distribution deduction, a tax deduction that trusts may take for amounts paid to an income beneficiary. The income distribution deduction is equal to the lesser of either (1) the distributions minus tax-exempt income or (2) the “distributable net income” minus tax exempt income. Capital gains may affect this distribution because it figures into the calculation of distributable net income under several circumstances, most commonly if the trust requires the trustee to distribute the gains to the beneficiaries.

Managing a trust is a complex task from both a legal and financial perspective. If you have questions, seek help from an experienced Illinois estate planning attorney. Our firm's skilled lawyers serve clients in many northwest suburban towns such as Inverness, Barrington, and Kenilworth.

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.

Duties of Trustees to Beneficiaries

Web Admin - Wednesday, July 30, 2014

long grove wills and trusts lawyerOne common legal instrument that people use to plan their estates is a trust. A trust is a legal entity involving at least three roles: a settlor, a trustee, and a beneficiary. The idea of the trust is that each of these three roles work together. The settlor creates the rules of the trust and provides it with property, and they designate the beneficiary. The beneficiary, like the name suggests, is the person for whom the trust is managed. They derive the benefit of any income or other gains from the trust.

However, between the settlor and the beneficiary lies the trustee. The trustee manages the assets of the trust and uses them in the best interests of the beneficiary as directed by the rules of the trust that the settlor created. This means that the trustee has a variety of duties that they need to fulfill. These trustee duties can be thought of as either substantive or procedural duties. This is not an official classification, and the lines can blur, but it is at least a helpful way to catalog the duties.

Substantive Duties

Substantive duties are those that require the trustee to behave in a certain way. The central example is the duty to administer the trust by the rules the settlor laid out. The trust document will contain a variety of provisions, and it is the trustee's duty to follow them. Another example of these substantive duties is the duty of skill and care. This means that the trustee must manage the trust's assets with reasonable skill and caution. Similarly, Illinois law also imposes a “prudent investor” duty on trustees.

This means that the trustee has the duty to act as a prudent investor of the trust's assets including things like developing a diversified portfolio and actively managing investments as necessary. Trustees working with multiple beneficiaries also have a further duty: that of loyalty and impartiality. The trustee may not favor one beneficiary over the other unless the trust instrument provides some reason for it.

Procedural and Ministerial Duties

Trustees also owe beneficiaries a variety of more procedural duties, which involve the proper formalities of managing the trust. For instance, the law governing trusts in Illinois requires trustees to give annual accountings of the trust's receipts, disbursements, and an inventory of the estate. Trustees also often have duties to provide notice of certain actions such as changes in the trusteeship. This may also include a requirement that the trustee provide the beneficiaries with a copy of the trust instrument for their records.

These are just some of the many duties that trustees owe the beneficiaries of their trust. If you would like more information on the legal ramifications of managing a trust, contact an experienced Illinois estate planning attorney today. Our firm advises clients in many northwest suburban towns like Long Grove, Kenilworth, 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.


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