Illinois Estate Planning and Elder Law Blog

The person you choose to be the executor of your estate could be a relative, trusted friend, or even a professional such as an attorney or financial planner.

In some cases, your choice for executor may be very clear to you. If your spouse, for example, already knows your finances well, is skilled in the types of duties required, and is “ready, able, and willing” to take on the responsibilities associated with this role, it may be logical to designate them as executor. You may also have an adult child who first comes to mind as the best fit for this role. However, there isn’t always an obvious best choice.

Here are aspects to consider when it comes to your choice for executor of your estate:

Like the quarterback of a football team, the executor of your estate is the person who calls the shots for and passes your estate through probate. Deciding who to “draft” for this role requires a lot of careful forethought. This post will focus on some of the responsibilities of an executor.

Responsibilities of an executor

It is the executor’s responsibility to shepherd your will through probate in order for assets that need to pass through probate to be distributed to the beneficiaries you have chosen. The executor must obtain a “letter of testamentary” from the court. This authorizes them to act on behalf of the estate.

In the last post, I began writing about global families and estate planning for non-U.S. Citizen spouses. Today I will write about planning for international assets and bequests.

Planning for International Assets and Bequests

Because estate planning laws can vary greatly between countries, understanding the legal intricacies of your home country, your country of residence, and the residence of your beneficiaries is crucial. Some countries have “forced heirship” laws that often prioritize family members over wishes communicated in one’s will. There are also some countries that have inheritance taxes making it that the beneficiary of a U.S. citizen’s assets may incur considerable taxes if they receive property in that country. Also, expatriates may be subject to estate taxes in both their home country as well as their country of residence unless there is an applicable tax treaty. Laws such as these can have a significant impact on the intended transfer of wealth.

Estate planning can be overwhelming for many people, and it can be even more complex for today’s global families with international loved ones or with assets outside of the United States. For instance, someone whose spouse is not a U.S. citizen must keep unique legal considerations in mind while creating their estate plan. An increasing number of families also have international beneficiaries or own properties and assets in more than one country, and the laws and tax regulations of each jurisdiction need to be taken into account.

Planning for Non-U.S. Citizen Spouses

When it comes to estate planning for a spouse who is not a U.S. citizen, the following remain the same:

For those born between 1981 and 1995, estate planning may be associated with older generations and with being very wealthy. However, many millennials are at the age where they may be starting their own families or caring for aging parents. As millennials take on more responsibility in caring for loved ones, there is a greater need to plan for the possibility of becoming seriously ill or incapacitated as well as for how their family will be cared for after their death.

Where Can I Start?

Starting with the basics can help younger clients prepare for the future and protect their loved ones:

In the last post, I wrote about some of the complexities of art in estate planning as well as some strategies to consider if art assets are a part of your estate plan. Here are some things to consider when it comes to tax implications and valuation in relation to art assets.

Tax Implications And Planning

When it comes to art estate planning, tax considerations are extremely important. The different types of relationships a seller has to the art will present specific challenges as well as opportunities to that seller depending upon if they are an artist, investor, collector, or dealer. Tools such as charitable remainder trusts, qualified opportunity zone funds, and deferred sale trusts can lessen tax burdens while still protecting the collection’s legacy.

When it comes to the world of art, its value goes beyond simple aesthetics or price. Art realizes a legacy for artists, collectors, investors, and dealers as well as for their loved ones. Stories of individuals such as James Gandolfini, James Brown, and Doris Duke serve as cautionary tales of what can happen when there is inadequate estate planning for art.

The care and responsibility for art includes physical, financial, and legal aspects. There are rational and emotional considerations when it comes to art, calling for attention to detail when it comes to estate planning.

Navigating The Complexities Of Art In Estate Planning

One way that a party may challenge a will during a will contest is to assert that undue influence was exerted over the decedent by the party who benefits from the disputed will. This raises the question: What is undue influence, and what proof is needed to demonstrate its presence?

Appellate courts have explained that in order for influence over a decedent to rise to the level of being considered undue influence, it has to be demonstrated that this influence destroyed the free agency and will of the decedent. This could involve mental, moral, and/or physical coercion. The influence must rise to a level of the testator accepting the domination and influence of another instead of following the dictates of his or her own mind and will. Weakness of mind as well as the desire of the testator being distorted by the imposition of a stronger dominating influence typically need to be shown to establish the existence of undue influence. That a party gave care and assistance to the testator is not in itself enough to be considered evidence of undue influence to destroy that individual’s free will. It needs to be demonstrated that the influence destroyed the free agency and will of the testator and that the will reflected the desires of the party which exerted the influence.

Undue influence is typically demonstrated through witness testimony (and potentially through relevant documents) which evidence that another party exercised mental, moral, or physical exertion, or all three, over the decedent. Any drastic changes in the decedent’s estate documents which directly benefit this party may also be proof of undue influence having been exercised over the decedent. The presentation of this testimony can be complex, and it is important that it be carefully planned before presenting this evidence to the court.

The beginning of a new year is an excellent time to take a new look at your current estate plan or to create one for the very first time. Here are some specific opportunities to consider in 2024:

Increased Estate, Gift, and Generation-Skipping Transfer Tax Exemptions

The estate, gift, and generation-skipping transfer tax exemptions increased to $13,610,000 per person in 2024, which is an additional $690,000 of tax exemption per person. For those who have previously made significant gifts, this provides even more gifting opportunities. These opportunities include things such as gifting portions of your family business to the next generation, transferring growth stock, or helping your child with a down payment on a house. Unless Congress takes action to maintain the exemption at its current level, the exemptions are currently expected to decrease to approximately $7 million per person as of January 1, 2026.