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Wills are part of the estate planning process, an area of law that is sometimes underused or is not completed before emergency strikes. Generally, wills come into effect after a person passes. They outline how an individual’s estate and assets will be divided, who will carry out their last wishes, and who will take on the responsibility of caring for their minor children. Living wills are also meant to plan for emergencies, but they work in a different time frame and serve a different purpose.

Why Create a Living Will? 

Living wills are created to address what should happen in the case of a terminal illness or life-threatening injury. This type of will comes into effect when someone cannot make medical decisions for themselves, has a terminal condition, or is in a vegetative state. In other words, a living will is effective during a person’s lifetime, not afterward. Because such traumatic events are unpredictable, many individuals will formulate a living will which allows them to make decisions about the medical treatments they do or do not want to receive, and they can make these choices when they are still mentally and physically capable of doing so. These legal choices and directions are also known as advance medical directives, and they tell physicians and family members what to do in emergency situations.

What Can a Living Will Decide?

Living wills outline what type or level of care a person would like in the instance of medical emergencies. These options typically include:

- Use all treatments available to try and save their life;

- Try all treatments, but stop them if they do not work within a certain time period;

- Only utilize treatments that do not cause discomfort or pain; or

- Only provide care to help ease the pain, but no treatments that are intended to save or prolong the person’s life.

While almost every type of treatment can be addressed in a living will, there are a few specific treatments that are included in most living wills because they greatly impact a person’s quality of life. Individuals often decide whether or not they would like to allow tube feeding, life support, and/or cardiopulmonary resuscitation (CPR). Those who do not wish CPR to be used can also sign a Do Not Resuscitate (DNR) order and add this to their living will. This will ensure that no artificial means of resuscitation will be used, even if it would be necessary to live. A power of attorney is another legal document that can be tied to a living will. This grants a person the permission to carry out the legal decisions that they have outlined when they are unable to make these decisions for themselves.

Contact an Arlington Heights Attorney

Creating a living will should not be left for times when you are facing health difficulties. Instead, it should be done while you are physically and emotionally capable of doing so. Estate planning may seem like an area of law that should be left for the future, but medical emergencies can never be predicted. At Drost, Gilbert, Andrew & Apicella, LLC, our lawyers have experience with all areas of estate planning, and we can help you keep your present and future best interests a priority. If you are considering creating a living will, contact our Palatine, IL estate planning attorneys at 847-934-6000 to schedule a free consultation.

Sources: 
https://www.investopedia.com/terms/l/livingwill.asp
https://www.drugs.com/cg/living-will.html
https://work.chron.com/power-attorney-do-9474.html

Today’s families come in many forms. In fact, there are fewer “traditional” families than ever in which two opposite-sex parents are married for the first time and have children together. Since divorce is common, and couples often choose to live together and have children without getting married, many families include step-parents and step-children. In addition, the legalization of same-sex marriage has resulted in complex family arrangements involving biological children and adoptive children. Regardless of how a family is configured, it is important to plan for the future and ensure that all family members’ needs will be met. For non-traditional families, it is important to consider the following during the estate planning process:

1. Update your will - Your last will and testament specifies how you want your assets to be distributed to your heirs after your death and any other last wishes. You will want to be sure that your will addresses your partner, your children, your step-children, and any other family members.

2. Create a trust - In addition to your will, a trust can provide more control and flexibility for how you would like your assets to be distributed to your beneficiaries. A living trust can be changed or modified if necessary, and it can also be used to provide for your and your partner’s needs during your life.

3. Use power of attorney - While married spouses have the right to make decisions for each other, this is not always true for unmarried couples. A power of attorney agreement can be used to ensure that partners will be able to make medical or financial decisions for each other if one of them becomes incapacitated.

4. Consider a prenuptial or postnuptial agreement - When you get remarried, your new spouse will typically be entitled to receive half of your estate following your death. A prenup or postnup can ensure that certain assets will be set aside for any children you may have from a previous marriage or relationship.

5. Address plans for retirement - If you have any retirement funds saved in an account such as a 401(k) or IRA, you will want to be sure to name beneficiaries who will receive these funds following your death. You can name your spouse or partner as a beneficiary, as well as any children or step-children.

Contact a Kenilworth Estate Planning Attorney

When creating a comprehensive estate plan, you will want to be sure all of your family members will be provided for. Determining how to do so when you are in a non-traditional family can be a complex matter, and an experienced attorney can help you address issues involving same-sex partners, children from previous marriages, adoptive children, or other family members. Contact our Riverwoods estate planning lawyer today at 847-934-6000 to schedule a free consultation.

Sources:
https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1773&context=sulr

A trust is a legal agreement created by the owner of assets or property that designates an individual (a trustee) to manage the assets and distribute them to the beneficiaries named in the trust. Assets can be distributed either during the life of the person who creates the trust (known as the grantor) or after their death. In many cases, a grantor chooses to pass their assets to relatives or close friends; however, some may also wish to support a cause they believe in by naming a charity as a beneficiary. In these cases, charitable trusts can be used, and they typically fall into one of two categories: charitable lead trusts and charitable remainder trusts.

The 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.

You 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: 

The 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

The 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.

The 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.

Health 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.

While 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.