Illinois Estate Planning and Elder Law Blog

Q:How long are wills good for? Can you renew them or do you have to make a new one? How about powers of attorney?

A: Wills don’t expire or become invalid over time, so once you have created one, you won’t need to renew or replace it after a certain number of years. However, you will want to make sure to update it following certain life changes.

The same is also true for a power of attorney – it does not expire, especially in the case of a durable power of attorney. You can, however, choose to give a POA a time limit that is specified in the body of the document, such as a limited POA created for a specific transaction or period of time.

One important part of estate planning is helping your children and grandchildren with the ever-escalating costs of their education. If they are already in school, you can do this by writing a check for their tuition directly to their educational institution. For younger children or grandchildren who are not yet enrolled, you may wish to delay giving them these funds until it is time for them to pay for college tuition costs. In this case, you have a few options, including making a gift into a custody account or into a trust that qualifies as a current gift under the Uniform Gifts to Minor’s Act. You can also choose to fund a Qualified Tuition Plan under IRC Section 529.

The two types of 529 programs are prepaid plans and savings plans. Unlike a Uniform Gift to Minors Act plan, the earnings on the assets in a 529 plan aren’t taxed until the funds are distributed, and distributions are tax-free up to the amount of the student’s qualified higher education expenses (defined below).

Prepaid Programs: Certain colleges make it possible for you to buy tuition credits or certificates at current tuition rates, even though the beneficiary (child) is not yet starting classes, locking in today’s rate for tomorrow’s education. Through this program, if a child is accepted into college and will start next year, you can purchase tuition credit for all four years at the current year’s rate. This can save a lot of money if tuition costs are rising quickly but isn’t a good option if tuition costs are declining.

Remote witnessing and notarization is becoming increasingly more common for executing estate planning documents. To do this, a witness or notary can use two-way audio-video communication technology to witness or notarize an act instead of doing so in person. As of June 2020, at least 44 US states now allow remote witnessing and/or notarization in some form, be it permanently by statute or temporarily by governor’s order.

Just as execution requirements for wills, trusts, powers of attorney, and advance healthcare directives (or healthcare powers of attorney) vary widely between states, so do the requirements for remote execution of those documents during the COVID-19 pandemic. Many states allow for remote witnessing, while others have temporarily suspended witness requirements for all documents aside from wills. There are also certain states requiring notaries to be specially registered as an “online notary” or require specific software to be used to record the videoconference. Below are the estate planning document execution requirements in Illinois:

Illinois Governor J. B. Pritzker issued Executive Order 2020-14 on March 26, 2020. It was then amended and re-issued by Executive Order 2020-33 on April 30, 2020, and again re-issued by Executive Order 2020-39 on May 29, 2020. These orders allow for remote witnessing and notarization procedures.

Many people are under the impression that families that accrue an above-average amount of wealth or assets will pass down these fortunes generation after generation. However, a Wealth-X report shows that 68% of the those whose net worth exceeds $30 million are self-made, 24% of those individuals have a combination of inherited and self-created fortunes, and just 8.5% solely inherited their wealth.

This comes as less of a surprise when one considers how difficult it is to transfer wealth from one generation to the next. Another study that spanned decades and followed 2,500 families found that 70% of family fortunes run out by just the second generation and 90% run out by the third generation.

Wealth can be difficult to retain and easy to mishandle, especially without preparation. Parents might spend time and money to properly organize their estate and later pass it on to their children, but those efforts may be in vain if their children are not prepared for that wealth. Future generations need to be equipped with the values, the knowledge, and the life skills needed to sustain inherited wealth so that they don’t find themselves overwhelmed and underprepared when they inherit the wealth you have accrued.

Preparing a will and estate plan is a normal process for those who wish for their assets to be protected. Things such as a home, car, family heirlooms, art, stocks, or other items will pass to surviving loved ones intended by the deceased as instructed in a will. Dying without preparing a will, then, leaves the distribution of your assets outside of your control and will also take more time, money, and more of a stressful toll on your loved ones.

Mitch Adel, managing partner at Cooper Adel Vu in Centerberg, Sidney and Chillicothe; Steve Gariepy, partner and chair of the estate planning group at Hahn Loeser & Parks LLP in Cleveland; and Beatrice K. Sowald, partner at Sowald, Sowald, Anderson, Hawley & Johnson in Columbus, share about the difficulties faced when an individual dies without having properly prepared a will.

“The first thing is the family should confirm there is no will,” Gariepy said. “Ask around and just be doubly sure of that. After that, we have what is called intestacy laws, which cover dying without a will. They kick in and dictate who the beneficiaries and administrator of the estate are.”

As the COVID-19 pandemic continues, many are worried about their health and are putting more thought toward whether their financial and legal affairs are in order in the event of serious illness or death. Pandemic or not, it is always recommended that every person have an estate plan in place, including at least four primary documents:

• A will
• A medical power of attorney