Estate planning allows for management of assets and personal affairs beneficial to you and your loved ones. It allows parents to choose the caregiver of their minor children rather than relying on a judge to decide. It also helps to select and implement strategies that reduce taxes, professional fees (including attorney' fees), and other costs rather than leaving it up to chance. Moreover, estate planning allows you to act rather than relying on the government to decide. In Illinois the Illinois Probate Act determines what will happen to your property if you do not engage in estate planning. Of course you should also keep in mind federal laws.
Contact K & R Family Legal Services L.L.P. today to begin planning for your and your family's future and schedule your initial estate planning consultation.
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Frequently Asked Questions Regarding Wills:
Who needs a will?
Since almost everyone dies while owning property everyone needs a will. In the absence of a will state law determines what happens to the decedent's property. Moreover, without a will decedent's estate will have to go through a lengthy and expensive process known as probate before decedent's property will be distributed according to state law. In the absence of a will the decedent's property will most likely be distributed to relatives.
Preparing a will allows you not only to decide what should happen to your property after your death, but also to make sure that the legal process your nearest and dearest must go through after your death is as easy and straightforward as possible.
Everyone dies with a will. However, some of us plan and prepare our wills according to our wishes, while the State of Illinois mandates the wills of others.
Can I draft my own will or should I contact an attorney?
If a will does not meet the requirements of the Illinois law it will be invalid. An invalid will is worthless. "Do it yourself" will preparation kits often do not meet the requirements of individual states. Thus, if you would like to ensure that your will is valid you should contact an attorney.
Instead of having a will prepared can my spouse and I just own property in joint-tenancy instead?
Joint tenancy with right of survivorship allows one of the owners to become full owner of the property at the death of the other owner. However, there are tax implication and simple ownership issues when joint tenancy is involved.
Joint tenancy is not a will. If you hold property in joint tenancy with someone other than your spouse that person can sell his or her interest in the property or that person's creditors can try to obtain his or her interest in the property.
If I die without a will who will get my property?
If a person dies without a valid will his or her property will be distributed according to state law in probate proceedings. In most cases the spouse and children of the decedent will receive the property. If the decedent was not married and had no children then the decedent's parents, and then siblings, grandparents, and grandparents' children will receive the property. If no close relatives can be located and the decedent left no valid will the property will eventually belong to the state.
Moreover, in the absence of a will and after certain small allowances for decedent's spouse and children, the decedent's creditors are able to make claims to the property prior to any further distributions.
Can I determine who will take care of my children after my death?
Another benefit of a will is that it allows you the opportunity to name the guardian of your children in the event of your death. Although, the court is not bound by naming of a guardian, the court will consider it and it is the only way for a parent to make his or her wishes known after his or her death.
When should I make a will?
You should have a will prepared now. None of us know what the future holds. Preparing a will does not mean that you are asking for the worst, but rather that you are taking the necessary steps to provide for your family's well being if something happens to you.
Once I prepare a will should I review it?
You should review your will (and/or your estate plan) occasionally. You should update your will (and/or estate plan) periodically, especially after life changing events like marriage, birth or adoption of a child, divorce, inheritance, or winning a lottery.
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THE "NO WILL" WILL EXAMPLE
The Last Will and Testament of John Smith
Drawn Up for Him by the State of Illinois Because He Died Without a Valid Will
I, John Smith, a resident of Illinois, do hereby accept this to be my Last Will and Testament drawn by the State of Illinois, because I do not otherwise have a valid will.
1.0 I give my wife one-half (1/2) of my assets, which I own in my own name, and I give my children the remaining one-half (1/2).
1.1 I appoint my wife as guardian of my children, but as a safeguard I require that she report to the Probate Court each year and render an accounting of how, why, and where she spent the money necessary for the proper care of my children.
1.2 As a further safeguard, I direct my wife to produce to the Probate Court a Performance Bond to guarantee that she exercises proper judgment in the handling, investing, and spending of the children's money.
1.3 As a final safeguard, my children shall have the right to demand and receive a complete accounting from their mother of all her financial actions in their money as soon as they reach legal age.
1.4 When my children reach age eighteen (18) they shall have full rights to withdraw and spend their shares of my estate. No one shall have any right to question my children's actions on how they decide to spend their respective shares.
2.0 Should my wife remarry, and also die without a will, her second husband shall be entitled to one-half (1/2) of everything my wife owns in her own name.
2.1 Should my children need some of this share for their support, the second husband shall not be bound to spend any part of his share on my children's behalf.
2.2 The second husband shall have sole right to decide who is to get his share, even to the exclusion of my children.
3.0 Should my wife predecease me or die while any of my children are minors, I do no wish to exercise my right to nominate the guardian of my children.
3.1 Rather than nominating a guardian of my preference, I direct my relatives and friends to get together and select a guardian by mutual agreement.
3.2 In the event that they fail to agree on a guardian, I direct the Probate Court to make the selection. If the court wishes it may appoint a stranger acceptable to it.
4.0 Under existing tax law, there are certain legitimate avenues open to me to lower death taxes. Since I prefer to have my money used for governmental purposes rather than for the benefit of my wife and children, I direct that no effort be made to lower taxes.
IN WITNESS WHEREOF, I have set my hand and seal to this, my Last Will and Testament, consisting of two (2) typewritten pages, on this ________day of _________, 20___.
_______________________________ (SEAL)
John Smith
THIS MEMORANDUM IS AN EXCERPT FROM THE BOOK ESTATE PLANNING PRIMER: WHAT EVERYONE NEEDS TO KNOW ABOUT ESTATE PLANNING, BY TIMOTHY S. MIDURA, C.P.A., J.D., LL.M., PUBLISHED BY THE ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION , Copyright (c) 1990-2008- USED WITH PERMISSION.
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