Estate Talk Blog

What Do You Need To Make A Will?

What do you need to make a will? At the heart of the matter are three key considerations that you absolutely must have in order to make a will. They are:

  1. Capacity
    Capacity means you are of sound mind, aware of what’s going on, what assets you have and who you want to give them to. You’re giving a gift, just in the future. In order to give a gift, you need to know what you’re giving and to whom. And with a will, you are setting that down on paper at a certain point of time for a transfer to happen later.

  2. Free Choice
    You can’t be threatened to put certain things into the will. It has to be entirely up to you as far as what you are giving and to whom. Sometimes we refer to this as not being under duress, or not being coerced into taking a particular course of action.

  3. Proper Execution
    In the State of Illinois, to properly execute a will, you need to have two witnesses who are not related to you, as well as a notary. And they will affirm that you are of sound mind when you are executing the document, that what is in the document reflects your choices, and that you are aware of what you are doing and what decisions you’re making.

These are just the basic elements you need to have in order to make a will, not a checklist of everything that should go into such a document. The actual provisions of a will are going to cover many more things, such as naming an executor and beneficiaries, and hopefully including provisions to streamline the probate process and avoiding costs where possible to do so. To talk more about such points, consider an estate planning strategy session.

Does An Estate Plan Remain Valid If You Have Another Child?

Does an estate plan remain valid after you have a child? It may seem an unusual question, but it came up in estate planning for a young couple we’ll call Jen and Mike.

They said, “Look, we have a one year old and we might want to have another child or two in the future. If so, what happens to our estate planning documents? Will they remain valid?”

The answer for them and others in this situation is that one can always amend the estate plan and build upon it.

If Jen and Mike have more kids in the future, they can amend their estate plan to specifically name the new children. This uses the existing estate plan without starting from scratch.

In addition, one can include after-born children. Such a provision states that if a child is born after the estate plan is signed, that child is included in the plan as if named. It serves as additional security until the plan is updated to actually name the child.

When it comes to estate planning, there’s always a major life event that is either anticipated or a possible concern. Life is just that complex. That’s why estate planning is not intended to be just something that you do once and have it fixed in time. Due to its importance, you don’t want to put off estate planning for a potential future event. Instead, it’s better to just discuss it in the context of planning.

There’s always going to be one more thing on the horizon. But waiting for a “perfect time” to take action instead can lead to getting caught without any kind of estate planning in place when a real need arises. A more sound strategy is to put a foundation into place today, and calibrate it as needed to keep up with changes as they occur.

The Pet Trust: Putting Your Best Friend In Your Estate Plan

When talking with individuals or families to do an estate plan, it’s not unusual to get the question, “Can this plan be used to take care of the family pet?”

Good news: Yes.

Illinois allows you to create what’s commonly known as a pet trust. The pet trust is a legally recognized trust that works in a similar way to a traditional trust that might apply to family members, but with a more narrow purpose.

The pet trust is a useful way within estate planning to make sure that the animal who has been there for you no matter what, day in and day out, is going to be taken care of in the context of your plan. The statute allows pet trusts to provide for a range of different pets or domestic animals.

Upon our first conversation, we’ll take down some key information as well round out the terms of the trust, including a detailed description of the animal or animals to be provided for, appointment of the person who will be the trustee and be able to provide day-to-day care for the designated pet or pets, as well as an allocation of funds to be used in caring for the animals.

One can optionally designate an additional person to verify the trustee is taking care of the animals and using the resources of the trust wisely.

If you have questions about how to set up a pet trust within an estate plan, feel free to contact us to request a consultation and select a time for us to connect.

Child Inheritance: If Under 18, What Can They Receive?

Sometimes couples with young children ask whether a child under age 18 can receive an inheritance. The question of child inheritance is a good one. In Illinois, a minor child cannot receive his or her inheritance while they’re still under 18.

In a probate situation, if both parents were to pass away, the court would set aside assets intended for the child. An order would then be entered allowing the child to claim them upon reaching the proper age, but would not award them to the child outright.

Is there any way you can go about planning for this type of situation involving child inheritance?

Yes, by setting up a trust that will hold the assets for the benefit of the child. Any decisions would be made by the person acting as the trustee and consistent with the terms of the trust. The assets could be potentially used for the benefit of the child prior to reaching age 18.

There are a couple of other advantages of going this route.

First, in a child inheritance situation where the assets are being administered by the trust, there would not be a need for a separate probate court proceeding, at least for this purpose.

Secondly, the trust may allow the delivery of assets to be stretched out over a broader period of time. Therefore, the child would be receiving them later on in life as opposed to inheriting assets all at once upon reaching age 18. This can be a way to protect the assets and ensure they will be available over time.

If you have questions about how to set up your estate to address such considerations, feel free to contact us at Windy City Legal.

Inheritance Rights Of Heirs: What Can You Control?

What are the inheritance rights of heirs? Can you control the money that your heirs, including family members such as your spouse and children, are going to receive from you? The answer depends heavily on how you structure an estate plan.

If your estate plan is focused around a will, you should understand that the will is a document that transfers assets in the manner of a gift in the future. And when you give a gift, you cannot restrict what the recipient receives or how the recipient uses it.

It’s similar to how funds are transferred through a beneficiary designation. The plan custodian or brokerage will simply transfer the assets as directed by the beneficiary designation. Once that transfer occurs, there’s no further restriction on what happens with those assets.

What about situations where there is a joint bank account or financial account already in place? The account is jointly held by the grantor and the beneficiary. In this case, there probably won’t be any restriction on the inheritance rights of heirs – certainly not to the beneficiary using those assets now.

What estate planning does is that it affords an opportunity to implement a trust. Within a trust, you can restrict the age at which assets will be transferred along with the purposes for which they will be paid out. So if the intended beneficiary is either too young to receive assets directly or just does not have the financial sophistication and wherewithal to receive them outright, the trust provides a critically important vehicle.

If you have questions how to best structure your estate, feel free to contact us at Windy City Legal.

How can I leave real estate to a family member without probate?

“Is it possible for me to leave real estate to a family member while avoiding probate?” This video addresses different ways to transfer real property and some of the considerations that go with them.

Some of the ways that may be appropriate include holding the property in a trust, setting up a land trust, or preparing a transfer on death instrument. Each of these has certain costs and benefits.

There also are considerations with holding property in an LLC or in joint tenancy. For example, the interests in the LLC may themselves be subject to probate if they are of sufficient value and not otherwise planned for. Also, joint tenancy is limited to transferring the real estate among the joint tenants, not other heirs, and may create potential asset protection issues.

While no one strategy is optimal to every situation and there’s no sure guarantee for avoiding probate, there are a number of useful strategies to choose from. Estate planning can ensure the best strategy for your particular situation is the one that is implemented.

Who should be the guardian of your children when you and your spouse don’t agree?

Choosing a legal guardian for your child can be a tricky one — especially if you and your spouse disagree on the selection. Fortunately, Windy City Legal’s Ian Brodsky offers forth a strategy in this video to help you find an acceptable solution.

Let’s talk further about legal guardianship as well as the questions you and your spouse may have. At this stage, with your child’s life ahead of them, it’s a vital conversation for us to have as part of Estate Planning for Life.

Estate Talk podcast

We are adding an estate planning podcast. Estate Talk will focus on Illinois estate planning and other estate topics. You will find information on wills, trusts, healthcare planning, protecting your family, charitable giving, asset protection, and more.

Are trusts only for the rich?

Are trusts only for the rich? No — there are a lot of benefits to including a revocable living trust in your estate planning. They can address some very common situations which otherwise may require a trip to the probate court for one reason or another.

The living trust is one estate planning vehicle that can provide value to anyone who wants to avoid the delays, costs, and publicity that accompanies a probate case. For example:

For people who own real estate, holding it in a revocable trust will make it a non-probate asset. Otherwise, a probate proceeding in court may be required to transfer the real estate to an heir. And for those who live in Illinois but own real estate out of state, having a revocable trust to administer the real estate can potentially avoid the need for ancillary probate proceedings in the other states.

If your family includes minor children, a living trust can hold the funds and provide limitations on how the trustee should spend them. That way, you can be sure the monies would be spent on the actual needs and care of the children, and not put to other purposes that benefit the trustee as much if not more than the children.

When the family includes a person with a disability or special needs, a living trust similarly can be used to set aside funds for his care.

Of course, administering assets also is a use of the living trust, but it is not necessarily a prerequisite. Any one or more of the other factors may make implementing a living trust worthwhile.

Because they can offer security, continuity, and some protection and control against the dissipation or misuse of the assets they hold, the revocable living trust is a tool that should be considered by families who are still building their net worth.