3 Reasons Why a Living Trust Is More Beneficial Than Just a Will

Web Admin - Wednesday, January 23, 2019
Des Plaines living trust lawyerIf you wish to leave a legacy to your children or other beneficiaries after your death, it is imperative that you have an estate plan that will ensure prompt and accurate distribution of your assets. Many people think that writing a will is the best way to do this. However, while a will is important, putting your assets into a revocable living trust can provide several additional benefits.

Avoid the Illinois Probate Process 

In order to distribute assets according to the terms of a will, the will must go through the probate process. This involves filing various court documents required by law to establish the value of each asset and to re-title each asset from the deceased’s name to the recipient’s name. This can be a long, drawn-out process.

Secure Adult Heirs’ Immediate Access to the Estate

One of probate’s most serious drawbacks is the freezing of assets. Specifically, any assets that are held solely in the name of the deceased are frozen upon their death. Imagine a married couple who amassed several large investment and retirement accounts and multiple pieces of real estate during their lifetime. Upon the death of both spouses, their children cannot touch any of the assets until a probate court judge approves the will and appoints a Personal Representative to handle the estate. Leaving large investment accounts without active management can be risky.

By comparison, imagine that all of the couple’s assets had been placed in a living trust, meaning that the assets are titled in the name of the trust rather than in the name of any individual. Upon the death of the trust-maker, their designated successor has immediate access to the assets of the trust.

Secure Assets for the Long-Term Benefit of the Family

Imagine our married couple has three children and has a will. Upon the death of both spouses and probate action, the assets of the estate must be divided amongst the named heirs. Assuming the estate is to be divided equally among the three children, the inherited assets are now at risk to creditors, bankruptcy, a lawsuit, or a divorce. 

Creditors. If the married couple had all of their assets in a trust, ownership of those assets can remain titled in the name of the trust indefinitely. Because the assets are not titled in the individual children’s names, the assets are protected from creditors, even if one child files for bankruptcy or gets divorced. The beneficiaries named in the trust will have access to the assets in accordance with the directions specified in the trust documents. 

Heirs with disabilities. Upon the death of the spouses, one child (or an objective third party such as a bank) could be named as the successor trustee with directions to manage the trust in a certain way. This approach can be used to ensure that the use of the assets is prioritized in some way, such as to meet the basic needs of a child or grandchild with a disability. Keeping the assets in the trust can also serve to protect the right of a disabled heir to receive needs-based government benefits.

Underage heirs. Keeping the trust open with a successor trustee can also be beneficial for heirs who have not yet reached adulthood. When a will leaves assets to a minor, the probate court must appoint a conservator to manage the minor’s assets. Once our fictional married couple has died, there is no telling who that conservator might be and what decisions they might make. In contrast, assets left in a trust can be managed according to specific directions written into the trust. Thus, the maker of the trust can dictate when and for what purposes a youthful (or even as-yet unborn) heir can access their inheritance.

Consult a Palatine Revocable Living Trust Lawyer

A well-thought-out living trust can give you greater peace of mind and benefit your heirs in the long run. To discuss options for writing or updating a living trust, call an experienced Schaumburg living trust attorney at Drost, Gilbert, Andrew & Apicella, LLC. We have prepared living trusts for many high-asset families with complex issues of inheritance. To set up a free initial consultation, call 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.


Two Important Benefits Provided By a Living Trust

Web Admin - Tuesday, August 07, 2018
Arlington Heights trust lawyerThe thought of planning for what should happen after one’s death is often too morbid for many people to want to consider. However, doing so is incredibly important, since you want to be sure that your wishes will be followed correctly and that your heirs will be able to receive the assets you plan to pass on to them with minimal complications. While you may think that the estate planning process begins and ends with the creation of a last will and testament, another tool that can be very powerful is a living trust. 

Trusts allow you to protect certain assets, placing them in the control of a trustee and passing them to your beneficiaries once certain requirements are met. With a living trust, you can serve as the trustee while you are still living and mentally competent, giving you control over your assets and allowing you to revoke or change the terms of the trust to meet your and your family’s needs. There are a number of benefits to using a living trust, but two of the primary advantages are:

1. Avoiding Probate

When a person dies, the executor of their estate will enter their will into probate court, which is a process that can be lengthy and expensive as the court reviews the will and approves the paying of debts and taxes and the passing of assets to beneficiaries. The will is entered into public court records, meaning that the family’s personal business is available to be viewed by anyone who wants to examine the court documents. 

A trust, on the other hand, does not have to go through the probate process. This will allow assets to be passed to beneficiaries much more quickly and with fewer complications, and it will also ensure that the details about the estate are kept private.

2. Planning for Illness or Incapacitation

In many cases, when a person becomes ill or incapacitated or is no longer able to manage their own affairs, a friend or family member is named as their legal guardian. Guardianship will often not only give a guardian control of a person’s health and personal care, but also their financial affairs. This type of situation is not ideal, but a living trust can help you avoid losing control of your finances by addressing how things should be handled if you are incapacitated. 

Your trust can specify what conditions should exist for you to be declared incapacitated or mentally incompetent, and it can name a successor trustee who will manage the trust in this situation. The trustee can ensure that you have the financial resources you need to provide for your own care, while preserving your assets to pass on to your beneficiaries after your death.

Contact a Palatine Estate Planning Attorney

If you want to know more about how to use a living trust to protect your assets and pass them to your heirs, the attorneys of Drost, Gilbert, Andrew & Apicella, LLC can answer your questions and work with you to create a comprehensive estate plan. Contact a Schaumburg living trust lawyer 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.


Why You Need an Estate Plan Even If You Do Not Have Children

Web Admin - Thursday, January 11, 2018
Palatine estate planning lawyerFinancial advisors and attorneys often tell their clients that estate planning is an essential part of anyone’s financial plan, ensuring that their assets are correctly distributed to their heirs after their death. But how does this apply to people who do not have any children? If you are not concerned with providing for your descendants after you are gone, you may not feel that an estate plan is necessary. However, it is still important to have a plan in place that will protect your assets both before and after your death.

Creating a Will

When someone dies intestate (without a last will and testament in place), their assets will be distributed according to Illinois’ intestate succession laws. If someone has no descendants, their entire estate will go to their spouse. If they do not have a spouse, the estate will be divided among their parents and siblings, or among their closest surviving relatives. If no relatives can be located, the estate will go to the State of Illinois.

Even if you do not have children, you will likely want to have some say in who will inherit your property after you die. Creating a valid last will and testament will ensure that your assets are distributed according to your wishes, whether you plan to leave them to your spouse, family members, friends, or charitable organizations.

Another benefit of a will is that it names an executor who will handle the distribution of your property to your heirs. Without a will in place, a probate court will appoint an administrator of your estate, and extensive court proceedings may be necessary to resolve any disputes over the distribution of your assets. Creating a will that clarifies your intentions and names a person you trust to oversee your estate will ensure that your wishes are carried out correctly.

Holding Assets in a Living Trust

Another benefit that estate planning can provide is ensuring that you will have the financial resources you need as you near the end of your life. A living trust is a good way to protect your assets, giving you control over them while also specifying who will handle them and how they should be used to care for you if you should ever become incapacitated or disabled, as well as how they should be distributed after your death.

One of the key benefits of a trust is that it simplifies the distribution of property after your death, since assets held in a trust are not subject to probate. In addition, while the contents of a will are part of the public record, a trust is confidential, providing privacy to both you and your heirs.

Contact a Rolling Meadows Estate Planning Attorney

If you want to know more about the benefits that estate planning can provide to you and your loved ones, the attorneys at Drost, Gilbert, Andrew & Apicella, LLC can help you understand the benefits of a will or trust and work with you to draft the documents that give you and your family the financial security you need. Contact our Palatine estate planning lawyers 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.


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.


Importance of Funding Your Living Trust

Web Admin - Friday, September 25, 2015

funding your living trust, Illinois estate planning attorney

The creation of living trusts in order to transfer property to beneficiaries is becoming increasingly popular. One of the major benefits of using a living trust is the avoidance of probate. However, if the maker of the trust (called the grantor) does not actually fund the trust with property or other assets, the grantor’s estate will likely have to go through probate. 

Living Trusts 

A revocable living trust is a form of estate planning that allows a grantor to determine who gets his or her property upon their death. A trust that is revocable can be altered, changed, or revoked during the life of the grantor. Upon the grantor’s death, the trust becomes irrevocable. After the trust becomes irrevocable, it cannot be changed and the trustee must follow the distribution plan made by the grantor. Alternatively, an irrevocable living trust is one that cannot be revoked once it is finalized. Both of these forms of trusts are called “living” trusts because they are formed during the life of the grantor. 

Living trusts provide the benefit of the avoidance of probate, which is a court process in which a determination is made as to how property is distributed upon the death of an individual. Probate, which is governed under Illinois law by the Probate Act of 1975, is often expensive and time-consuming. Additionally, it often means that property is not divided in accordance with how the deceased individual would have desired. 

In order to avoid probate, the grantor must correctly form the trust and fund the trust. A trust is formed through the creation of a written trust document that is signed by the creator of the trust and a notary public. The trust document must include a list of the property that is covered by the trust, name a trustee, and name the beneficiaries of the property included in the trust. 

The grantor must transfer the property that is to be covered by the trust into the trust. For most property, a trust is funded simply by including a list of covered property in the trust document. However, real estate must be retitled in the name of the trust in order to be correctly transferred. A trust that has not had assets properly transferred to it is called an unfunded living trust. 

Unfortunately, it is not uncommon for grantors to fail to fund their trust. This may occur when a grantor plans to get around to it in the future but never actually does it. Alternatively, a grantor may incorrectly believe that the creation of the trust document was sufficient. For example, in the case of real estate, the creation of the trust document is not enough due to the retitling rule. If a trust is not properly funded, the goals of the estate plan will not be achieved and the estate will have to go through probate. 

Help with Estate Planning 

Planning for what will happen to your property and assets is important for you and your loved ones. If you would like more information or help in forming a living trust, contact an experienced Illinois estate planning attorney today. Our firm proudly serves the communities of Inverness, Palatine, Schaumburg, Arlington Heights, Long Grove, Kenilworth, Riverwoods, Barrington, South Barrington, and Mount Prospect.

About the Author:

Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.



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.

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.

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

Web Admin - Friday, October 11, 2013

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

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

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

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

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

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

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