Illinois Estate Planning and Elder Law Blog

The unveiling of one’s last will and testament almost never happens like it does in the movies, where an attorney reads the document out loud and those in attendance are shocked. Although a formal reading is rare, those who are named (or not named) in someone’s last will and testament might still be surprised when the probate or trust administration commences. Surprises in a will typically lead to conflict between family members and more challenges for whoever is handling the estate.

The best thing you can do to prevent future conflict is to be transparent about your estate planning each step of the way. If possible, include trusted family members in the planning process. In spite of the natural bias they may have, they will hopefully put their own interests aside for the sake of what is best for you and in order to avoid potential problems.

Your loved ones may also be able to offer you insights that you wouldn’t have otherwise. They may be able to advise you on how best to meet ongoing support needs of beneficiaries. They may also know more about tensions within the family that you are not aware of but that you will want to address within your estate plan.

People often focus on their finances and physical property when planning for asset management after their passing, but it’s also important to make a digital estate plan since more and more of our personal information is stored online these days.

Social media accounts, email accounts, subscription services, images or videos stored online, blogs, and online currency are all included in this list of assets. Often, the terms of service and user agreements that we scroll through when signing up for an account state that the company will terminate the account after someone passes away instead of waiting for requests for content from their next-of-kin.

Most states have some type of legislation in place regarding how to handle one’s digital assets. Often, traditional executors or will representatives have access to some digital information, but this access is often limited and they may only be able to access information related to files needed for managing the physical estate.

The documents that make up your estate plan should be living documents that evolve and change with you. It’s best to review your plan at least every 5 years or whenever you or one of your beneficiaries has a major life event, including marriage, a new child, divorce, inheritance, or death.

Here are 10 topics to address when updating your estate plan:

DISTRIBUTION OF YOUR ESTATE

Many of us have accumulated a lot of stuff over the course of our lifetimes. Some of it may have significant monetary value, but most items have more sentimental worth.

All of a person’s belongings have to end up somewhere after they pass away, and a lot of people don’t do the planning to clearly communicate where these possessions should go. This can lead to a lot of stress, confusion, and sometimes conflict among loved ones after someone has passed. One might have a collection of sports memorabilia that they built during their lifetime that may be passed down to someone who doesn’t really care about sports, or there may be multiple heirs that feel entitled to one important item, like a parent’s wedding ring.

Losing a loved one is already very difficult, and things can become even more difficult when tension arises among family members without guidance on how to divide valuable or complex assets. Here are some tips to consider for your estate plan:

Not only are Limited Liability Companies (LLCs) a useful tool for small business owners, but they can also be a valuable tool for your estate plan and can be used to avoid gift and estate taxes when you pass assets down to your children.

An LLC is somewhere between a partnership and a corporation and has some characteristics of both. LLC owners are protected from liability like a corporation, and income and losses from the company are reported on personal tax returns like a partnership. LLCs also have less fees, filing requirements, and rules for how the company is organized and managed compared to corporations.

You can use an LLC to pass assets to children without being subject to gift and estate taxes. The estate tax exemption in 2021 is $11.7 million for individuals and $23.4 million for couples, and the lifetime gift tax exclusion is also $11.7 million. Currently, a parent can give their children $15,000 each per year before the gifts count against the lifetime limit. In 2026, these limits are set to drop back down to the previous exemption amount of $5.49 million (adjusted for inflation).

One common issue that arises when creating an estate plan is choosing which family members to name as agents or how to divide assets when you have favorite relatives.

When it comes to naming agents, you’ll want to consider a number of factors. For someone such as your health care agent, you might want to name a child who lives close enough to you to accompany you to medical appointments and who doesn’t need to worry about a time difference when communicating with your medical providers. Also, if any of your children works in the medical field, you may want to name them as health care agent because of their experience.

When naming who to handle financial assets, you’ll still want to consider their location, but you’ll also want to choose someone who is skilled at managing their own finances.

The question of what should be done with estate planning documents after they are created is one of the most common questions estate planners are asked. In short, documents should first be distributed to the appropriate people and agencies, and then they should be properly stored. However, who they should be given to and where they need to be kept varies for different types of documents.

Executed copies of durable general powers of attorney should be given to financial institutions, financial advisors, insurance agents, and all agencies involved with one’s finances or legal affairs. In addition, each agent listed within the document should have a copy. Make sure agents know what powers they have, whether they are immediate or springing powers. Give them the chance to ask any questions they may have ahead of time, and make sure they are able to have the document in hand when they need to use it.

Although it is typically not necessary, durable general powers of attorney are able to be filed at the county clerk’s office. Recording the power of attorney is somewhat expensive, and recording the document makes it accessible to the public. However, you’ll want to file any new or revised power of attorney paperwork if the agent will be transferring real estate or if the principal previously has filed a power of attorney.

One of the most difficult parts of dealing with the passing of a loved one immediately following their death is making decisions for their final arrangements.

The first question asked of next of kin is often where to send their loved one. The funeral home soon meets with the client to make decisions regarding arrangements, internment, cremation, flowers, and payment, among other things. The number of options available can be extremely overwhelming for anyone right after their loved one has passed away, and without direction, they are left having to guess what would have been wanted and might later carry guilt surrounding these decisions.

It’s natural to want to avoid thinking about our own death, but perhaps the most humane thing we can do for our family and loved ones is to plan at least some details our arrangements ahead of time. It is important to write out your wishes, and you can appoint an agent to carry them out or make any decisions that you do not plan for yourself. Keep this documentation with your other estate planning documents. The specific forms used vary from state to state.

Although a lot of estate planning advice is written for people who are married and have multiple kids, this is obviously not everyone’s situation. Last week’s post covered a number of estate planning needs of individuals who are not married, and I will continue writing about that today.

It’s important for unmarried individuals to think carefully about who will be executor of their estate and make sure to discuss this role with that person to make sure they are ready to take on that responsibility. Otherwise, the person appointed executor may be someone you would not want to fill the role.

For assets such as IRAs, retirement plans, annuities, life insurance, and others for which you can name beneficiaries, be sure to complete beneficiary designation forms, keep copies of these forms safely storied, and update these forms when needed. You’ll also want to let beneficiaries and your estate executor know about these decisions and where these documents are kept.