|
These are frequently asked questions about wills, trusts, estates, and probate, and general answers to those questions. The information given is intended to be used for informational purposes only, and is not intended to be a comprehensive answer to any one person’s specific situation. Answers to any specific problem may depend on particular facts at issue, and may change the answers found here.
What is estate planning?
What is an estate plan?
What is a will?
What is a living trust?
What is a living will?
What is a health care power of attorney?
What is a property power of attorney?
What does a will do?
Do I have to have a will?
What happens if I die without a will?
When do I have to do a will?
When do I need to update my will, powers of attorney, trust, etc.?
What is probate?
Is probate required?
How long does probate take?
Q: What is estate planning?
A: The things that you own constitute your estate. While you are alive, you can do as you please (for the most part) with the things you own – but what happens to your things after you die? Estate planning is simply a legal way for you to determine what happens to your things after you die. Some estates are small and simple, while other estates are large and complex, and many are somewhere in between; likewise, some estate plans are simple, others are quite complex, and many are simple enough to meet needs but complex enough to cover everything.
Back to top
Q: What is an estate plan?
A: An estate plan is the documents that you have to help take care of you and your affairs. The documents include your will (last will and testament), health care power of attorney, property power of attorney, living will, and trusts (i.e., a living trust). Not every estate plan is going to have all of these documents, and not every estate plan should have all of these documents. What documents you need in your estate plan depends on your circumstances and your estate.
Back to top
Q: What is a will?
A: A will is a written document that says what happens to the things you own after you die. In Illinois, your will has to be signed by you and witnessed by at least two disinterested witnesses over the age of 18. (A “disinterested” witness is someone who isn’t going to inherit anything in the will.) Your will is revocable up until you die, which means that you can revoke your will and change your will at any time up until you die. When you die, your executor or someone else will ask the court to enforce your will.
Back to top
Q: What is a living trust?
A: A living trust is a trust that you set up while you are alive. The things you own are re-titled to your living trust, so that your living trust is the legal owner of your assets. While you are alive, you are the beneficiary of the trust, and you receive the benefit of all of your assets. You will name one or more persons (or entities) to be successor beneficiaries. When you pass away, your successor beneficiary(ies) will receive the benefit of all of your assets automatically, without having to go through probate. (A living trust is also sometimes called a “revocable trust” or “inter vivos trust.”)
Back to top
Q: What is a living will?
A: A living will is a document which notifies your health care providers that you do not want any death-delaying procedures performed on you if you are deemed to have a terminal condition. The living will is effective in those circumstances if you cannot speak or otherwise communicate your wishes. It is important to know that in Illinois, a living will governs only death-delaying procedures when you have a terminal condition; a living will does not deal with any other health care issues – only whether your health care providers should use death-delaying procedures on you if you are terminal.
Back to top
Q: What is a health care power of attorney?
A: A health care power of attorney allows you to do any or all of the following: (1) name someone to serve as your agent to make health care decisions for you at any time that you are not able to make decisions for yourself – and this is true whether your condition is life-threatening or not, (2) name an additional person (or people) to serve as your successor agent(s) in case your primary agent cannot or will not serve, (3) dictate what health care procedures or treatment you do not want under any circumstances, (4) dictate whether or not you would like to donate organs, or which organs you may want to donate, (5) dictate what life-sustaining treatment you do or do not want, and (6) dictate who you want to be named as your guardian, should a guardian have to be appointed over you. Basically, a health care power of attorney is a broad and all-encompassing document that will insure that your wishes for your health care – whether your condition is terminal or not even that serious – are carried out when you are not able to articulate your own wishes for yourself. When you are able to articulate your own wishes for yourself, of course, you can do so – but the health care power of attorney protects your interests when and if you are not able to do so. Sometimes the name for a health care power of attorney will be shortened to “health care POA” or “POA for health care” (“POA” being short for “power of attorney”).
Back to top
Q: What is a property power of attorney?
A: A property power of attorney (sometimes also called a “financial power of attorney”) is a directive whereby you appoint an agent to take care of your finances on your behalf should you be unable to do so yourself.
Back to top
Q: What does a will do?
A: A properly drafted and properly executed will allows you to say specifically what happens to your assets, to whom they go, and when. A will allows you to provide for your family, friends, and charities in the way you see fit. A will appoints a person to serve as the executor of your estate – and even appoints one or two (or more) alternatives to serve in case your primary choice cannot or will not serve. A will allows your executor to do his or her job without posting a bond; otherwise part of your estate will have to be spent to pay for your executor’s bond. A will can be tailored to channel your assets into various trusts, so as to provide for family members and minor children.
Back to top
Q: Do I have to have a will?
A: You should have a will if you care about how your assets will be distributed after your death. Of course, you are not required by law to have a will. If you have family, friends, or charitable causes you want to provide for, you should have a will. If you don’t care what happens to your assets when you die, you can get by without a will just fine.
Back to top
Q: What happens if I die without a will?
A: Your estate will be distributed to your next of kin. The Illinois Probate Act specifies who your next of kin will be depending on your circumstances – marital status, children, etc. – this is “intestate distribution.” The person who administers your estate in court will have to post bond, and that expense will be paid by your estate – this is an expense that is easily waived by a will. The court will appoint the person who will administer your estate based on who asks the court for permission to do so, and the court may or may not appoint a person you would have wanted to do that job. The person administering your estate will have no discretion whatsoever in how to distribute your estate, because the Illinois Probate Act dictates that your estate will go to your next of kin in specific proportions – therefore, any specific distribution of your estate or specific goals you may have will not be honored. For some people – for some estates, and under some circumstances – intestate distribution is not very different from how the estate may have been distributed had you made a will, but the expense of posting bond for administering your estate would have been avoided. In most situations, however, intestate distribution is different from how you would have distributed your estate in a will – sometimes very different. If you have minor children, the court will decide who the guardian is going to be, whereas you can pick the guardian in your will; if you don’t have a will, the court may or may not pick the person you would have picked had you made a will.
Back to top
Q: When do I have to do a will?
A: Any adult over the age of 18 with any assets will need a will in order to distribute those assets as they wish; otherwise they will die intestate. You can have as many revisions of your will – or new wills altogether – as often as you wish. You should consider doing a will – or revising your will – when significant changes happen in your life: for example, when you marry (or remarry), when you have children, when you buy a home, when spouse or close family member of yours passes away, etc. As these changes occur in your life, your own estate is likely to change, and your intentions about what should happen to your estate are likely to change.
Back to top
Q: When do I need to update my will, powers of attorney, trust, etc.?
A: Once you have your estate plan in place (your will, a living trust (if applicable), a health care power of attorney, a property power of attorney, a living will (if applicable), etc.), it is a good idea to think about keeping the documents up to date whenever you have a major change in your life. These documents don’t expire. However, the specific provisions that you have included in the documents may become dated or irrelevant as changes happen in your life. You should think about whether your estate plan is current if you acquire more money, your marital status changes, you have children, your primary beneficiaries pass away or have significant changes in their lives, you move to a different state, or you simply change your mind about some aspect of how you want your estate to be handled after you die. So, think about updating your estate plan whenever a major change happens in your life. Over all, though, it might be best to at least think about your estate plan every five years – think about what documents you have in your estate plan and whether your estate plan still meets all of your needs to your satisfaction.
Back to top
Q: What is probate?
A: Probate the court process to deal with someone’s estate. Probate is most often used to settle the estate of someone who has died (where the court oversees and approves the actions taken by the administrator of the decedent’s estate), but probate is also used to administer the estate of people who are disabled and not able to care for themselves (where the court supervises the guardian of the state of a disabled person). A person who has died is called a decedent. Just the assets owed only by the decedent or disabled person are subject to probate – assets that are co-owned (owned in joint tenancy) or held in some other legal ownership (i.e., a trust) are not subject to probate.
Back to top
Q: Is probate required?
A: Probate is not required for all estates, and sometimes can be avoided. Every estate needs to be administered, and many estates need to be administered through probate. One common means of being able to administer an estate without probate is the small estate. When the total value of an estate is less than $100,000.00, the estate may be administered as a small estate, and the assets can be distributed via a “small estate affidavit” without court proceedings. The estate may be valued at less than $100,000.00 because the decedent simply didn’t have an estate that large, or because enough of the decedent’s assets are co-owned (in joint tenancy) or were transferred to a trust so as to leave the net balance of the estate at less than $100,000.00. Administering a small estate can be a fairly swift process. Estates valued at more than $100,000.00 generally do have to be administered through probate, which can also be fairly easy to do, depending on the ability to ascertain the decedent’s assets and debts and the executor’s willingness and ability to act.
Back to top
Q: How long does probate take?
A: All estate administration – whether through probate or through small estate administration – takes as long as necessary, depending on the executor’s ability to do things, the executor’s willingness to do things, the cooperation of family members, the cooperation of institutions where the decedent had assets, the ability to ascertain creditors and pay them, among other factors that may arise in particular estates. In other words, if you had to wind up the affairs of a loved one, how long would it take you, especially in light of all of the other demands on your time posed by family, work, hobbies, appointments, etc.? In addition to these practicalities – and handling these practicalities make up most of the time in any administration of any estate, whether through probate or not – the law also imposes some time requirements. The biggest time requirement required by law is a six month period where the legal notice of death is posted in the newspaper, and all unknown creditors are given a right to file a claim against the estate to be repaid. Once that six month period is over, any unknown (and unknowable) creditors who do not file a claim against the estate are barred from ever doing so in the future. During this six month period, the estate must remain open.
Back to top
|
|
Resources
Ask The Lawyer About:
Buying a Home
Selling Your Home
Condominium Law
Wills
Living Wills & Powers of Attorney
Tenant Rights
Landlord Rights
“How Much is this Going to Cost?”
|
