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.

Estate Planning in the Digital Age

Web Admin - Wednesday, May 21, 2014

digital assets estate planningFrom bankbooks to Facebook, more and more activities, both business and pleasure, are being conducted over the internet every day. A study from McAfee reports that in 2011 the average American had almost $55,000 in digital assets. These assets can present unique challenges during the estate planning process. They need to be passed on or wound up just like physical assets, but each online service has its own rules on handling accounts after death.  

What Digital Assets Are

Digital assets can be many different things, and it is important to have a clear understanding of the different types since they can require very different treatment after death. Digital assets include:

  • - Files on your home computer like pictures, word documents, and spreadsheets;
  • - Digital books and music like iTunes and Kindle books;
  • - Social networking accounts like Facebook and Twitter;
  • - Online gaming accounts and valuable in-game assets;
  • - Websites or domain names you own; and
  • - eCommerce information like bank accounts, Paypal, and eBay.

Choosing how to handle each of these assets can require some careful thought because they will each likely need a different form of treatment. For instance, Paypal accounts can probably simply be closed out after withdrawing the funds, but some people would prefer to see their Facebook page memorialized rather than simply closed.

Handling Digital Assets

From a legal standpoint, handling digital assets may be a challenge because the problem is somewhat new. This means that the law has yet to catch up to the technology in many ways. Instead, much of the legal landscape is determined by the individual service itself based on the “Terms of Service” that they have each user agree to. However, there are still precautions that you can take in order to better empower your loved ones to carry out your wishes.

The first thing to do is to create a digital inventory. This is a list of all your digital assets, where to find them, and the usernames and passwords necessary to access them. This inventory should also include instructions to the executor of your estate detailing what you would like them to do with each of the assets.

Then you should make sure that your legal documents include provisions for the management of your digital assets. This means designating an executor to handle your digital estate. This can be the same person as the executor for the rest of your will, but it does not have to be. If the executor for most of your estate lacks computer skills it could be prudent to name someone else to deal with digital assets. While this executor may still have trouble carrying out all your wishes if the website’s Terms of Service will not allow it, arming them with a digital inventory and a legal document can certainly improve their chances.

If you would like to make an estate plan or if you want to update your plan to account for digital assets, contact an Illinois estate planning attorney today. Our skilled team assists clients across the northwest suburbs, including in Inverness, Kenilworth, and Riverwoods.

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.

5 Benefits to Using an Institutional Trustee

Web Admin - Tuesday, April 08, 2014

illinois trusts and estate planning attorneyTrusts are versatile, useful legal instruments that allow the grantor (the person who sets up the trust) to set aside certain money or other assets for the use of another person (the beneficiary). However, the beneficiary does not have direct access to the assets. Instead, the trust is managed by a trustee whose job it is to control the assets and use them in the beneficiary’s best interest. This makes choosing the trustee one of the most important parts of setting up a trust.

Although most individuals can serve as a trustee, Illinois law also allows for the use of an “institutional trustee.” Institutional trustees are companies, often banks, who professionally manage the trust’s assets. These companies usually do charge a fee for the services, but the companies come with several benefits:

  • - They are skilled at managing trusts;
  • - They have the ability to handle complex paperwork and recordkeeping;
  • - They provide continuity to the management of the trust;
  • - They operate free of bias; and
  • - They are regulated to prevent fraud.

Reasons to Use an Institutional Trustee

  1. 1. Experienced Administrators: Institutional trustees have experience managing trusts. This allows them to easily navigate the legal requirements for trustees. Furthermore, many trustees are responsible for investing the trust’s assets. Banks and other institutional trustees are often professional investors who will be able to handle the task better than friends or family.

  1. 2. Strong Recordkeeping: Trusts also have fairly extensive recordkeeping requirements to prevent fraud on the part of the trustee. Institutional trustees have the infrastructure in place to make sure that important documents, like tax returns, are filed on time and do not get misplaced. Furthermore, the use of an institutional trustee prevents this complex work from being pushed onto a friend or family member.

  1. 3. Management Continuity: The corporate nature of institutional trustees also allows for continuity in the trust’s management. Trusts can last for decades and decades. An individual trustee may not be physically or mentally capable of managing a trust for its entire duration. Conversely, institutional trustees have the ability to smoothly transfer trust administration from one employee to the next, allowing for steady management of the assets.

  1. 4. Unbiased Distribution: Additionally, institutional trustees can eliminate the possibility of bias that might exist with trustees who are friends or family. The company would not have any prior history with particular beneficiaries that might interfere with the fair and evenhanded use of the trust’s assets.

  1. 5. Fraud Protection: Finally, institutional trustees have fraud prevention mechanisms in place. Although everyone would like to think that their friends or family members are above reproach, cases of theft on the part of the trustee do happen. Many institutional trustees are subject to government regulation and auditing requirements that can reduce the risk of fraud on their parts.

If you are interested in setting up a trust, consult with an Illinois estate planning lawyer to tailor one to your specific situation. Our attorneys lend their experience to clients across the northwest suburban area, including in Long Grove, Riverwoods, 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.

The Dynasty Trust: A New Method of Creating an Inheritance

Web Admin - Thursday, March 20, 2014

illinois trusts estate planning attorneyDynasty trusts are a new type of trust that can be used to minimize the burden of certain taxes that the government levies on inheritance by holding the inheritance in a trust for many generations. These trusts have become more popular in recent years as states have begun to relax or abolish a legal doctrine known as the rule against perpetuities. The rule is a complex legal doctrine that limited the length of trusts and other legal instruments to only lasting a certain period of time, usually about two or three generations, depending on a variety of factors. Now that the rule is being relaxed, it has made dynasty trusts a more viable option.

What is a Dynasty Trust?

Simply put, a dynasty trust is a trust that holds assets from which future generations will benefit. This has important tax consequences because assets placed into a dynasty trust are subject to the federal estate/gift tax only once. This means that the assets can flow down to further generations without future estate taxes. For instance, if a person left $10,000,000 to their child without using a trust, this would exceed the gift/estate tax exemption, so it would be subject to the tax. Then, if that inheritance appreciated in value and the child passed it on to a grandchild, it would be subject to another round of taxes. If, instead of simply passing the money down in the first place, the person had placed it into a dynasty trust, then the original $10,000,000 would be taxed at that point, but it the appreciated amount would not be subject to another estate tax when it went to the grandchild.

Another benefit of the dynasty trust is that it can help reduce the effects of the generation skipping transfer tax (GST). The GST exists because people used to leave money directly to their grandchildren in an effort to avoid the double estate tax of the previous example. The GST can take as much as 55 percent of the money passed down to grandchildren in excess of $1,000,000. If the dynasty trust is created using that $1,000,000 dollar exemption, then it can sizably reduce the burden of transfer taxes on future generations.

This means that the dynasty trust can be a very useful estate planning tool for people with large families, or those who have enough assets that the estate tax and GST are serious concerns. Additionally, dynasty trusts are also useful for people who would like to have some say as to how their money is spent after their deaths because dynasty trusts can sometimes be used to control such things.

If you believe that your estate planning could benefit from the use of a dynasty trust, contact a Long Grove estate planning attorney today. Our firm helps handle tax planning issues for clients across the northwest suburbs, including towns like Riverwoods, Barrington, and Kenilworth.

About the Author: Attorney Jay Andrew is 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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