Illinois Estate Planning and Elder Law Blog

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.

Discussions about estate planning often leave the impression that every senior in the United States is a married person with children. This is clearly not the case, and everyone who doesn’t happen to fall into this category needs the same amount of estate planning guidance as those who do. In this week’s post as well as next week’s, I’ll write about estate planning needs for unmarried people.

Individuals who are not married should prioritize traditional estate planning documents that don’t have to do with disposition of property: the health care proxy (or advance medical directive or living will) and financial power of attorney. These documents are needed so that when an unmarried person is unable to make medical or financial decisions, they can choose someone and make sure that person’s authority is recognized.

For your financial power of attorney (POA), you need to choose someone(s) who can take care of financial matters if you become unable to. Make sure that this person then understands your financial affairs so that they can take over when necessary. Show them how you’ve set things up and how to find any important information. You’ll also need to make sure they have a copy of the POA and that your financial services firms will accept it.

You might think that wills are only for wealthy people, or maybe you are young and think you don’t need to write one yet.

According to Caring.com’s 2020 Estate Planning and Wills survey, only 1/3 of Americans over 18 (and only 1/2 of those over age 55) have a will. However, every adult can benefit from having a will, and having one already written will make things easier for those left behind when you pass away.

Wills don’t necessarily need to be complicated or cost a fortune. Here are 5 things to know as you start writing your will:

The death of a loved one should be a time for family members to come together, but instead, estate and trust disputes can cause families to fall apart. Every family’s situation is unique, but certain issues commonly arise to cause these conflicts. It may be uncomfortable to address these issues, but doing so may prevent unnecessary discord and expensive litigation after one’s passing.

Here are some of the most common issues that cause trust and estate disputes:

Subsequent Marriages: Issues can easily arise when the surviving spouse is not the parent of one’s surviving children.  The surviving spouse often receives a decedent’s wealth for the remainder of their life, leaving the decedent’s children to only inherit what remains. Tension builds between children who feel entitled to and want to preserve family wealth and the surviving spouse with their own needs and lifestyle choices. Many problems can be prevented by addressing this tension ahead of time.

Often, the emotional aspect of thinking about death and planning for one’s own passing can be one of the most challenging parts of estate planning. If you’re finding it difficult to begin planning, here is an idea for a 3-step process to create a framework for your entire estate plan.

Begin by making three columns on a sheet of paper. Write the words ‘health’ and ‘money’ in the first and second row of the first column. In the second column, next to ‘health,’ write the name or one or two people in your life that you talk to about your health and doctor’s visits and who might take you to medical appointments. This is probably someone such as your spouse, adult child, or another family member or close friend.

After you have listed these people, use the third column to write down one or two alternative people to serve as backups for your first choice agent.

As we grow older, our mental capacity for decision-making and ability to deal with change declines. Although we may notice when we are “slipping,” we might not know the extent to which this capacity has reduced.

Most people experience periods of life where they have the ability to make decisions, periods of being mentally or physically incapacitated, and finally, the time when they pass. Your estate plan should address all three time periods, but the middle stage is often not addressed as well as it should be.

Trusts contain standard clauses regarding wishes in the event of one’s passing, and most estate document pages are designated to the handling of assets after someone has passed. However, most people are likely to spend some amount of time incapacitated, so it is important to acknowledge this and prepare for it to happen.

You may want to revise your legally valid will for a number of reasons as changes occur in your family’s circumstances over time. Adding a newborn grandchild as a beneficiary, removing an adult child’s spouse after a divorce, or changing a named executor, guardian, or beneficiary after the original has passed away are all common reasons to want to make revisions to your will.

However, resist the temptation to revise the will yourself without first understanding what is required to ensure the validity of your will and these revisions. The laws regarding these revisions vary depending on the state in which you live, so following an online template to change your will may be insufficient.

The amended will usually needs to be witnessed, and could even need to be notarized in your state. It is best to work with an experienced attorney to ensure the validity of your will.