How do you divide inherited real estate?

How do you divide inherited real estate?

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How do you divide up inherited real estate? This type of scenario can arise in a couple of different ways:

  1. It could be because you are doing estate planning and you want to tackle the question of what to do with the real estate head-on.
  2. It could be because someone who owned real estate passed away, leaving it to multiple heirs or beneficiaries. What if they have competing interests or different ideas about what to do with the property? That could create some problems.

There are several strategies to apportioning or dividing inherited real estate interests.

First, know that the inherited real estate can be sold and the proceeds divided. When the sale transaction is completed, the division of proceeds of the sale is very easy to do at the closing. Of course, factors such as the condition of the property, market conditions, and the economy as a whole can impact the sale.

If there are extensive real estate holdings, such as a large tract of land or multiple units that could be occupied or rented, then the real estate could be subdivided so that each heir would get a portion of the total portfolio.

Another option is for the heirs to continue to hold the real estate, and to apportion the income and expenses among themselves. This approach may make sense when the inherited real estate would produce a meaningful level of passive income.

Similarly, as in the case with a family vacation home, it may make sense for the heirs to continue to hold the real estate, and to apportion the use and upkeep of the property among themselves, as opposed to potential rental income.

Sometimes, however, one or more heirs wants to keep the property while others want to sell it. In that case, those who want to retain ownership can potentially buy the interest of those who want to sell.

If you find yourself addressing any of these scenarios, sign up for a strategy session with Windy City Legal and we can talk through the implications of each potential approach.

Are trusts only for the rich?

Are trusts only for the rich?

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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.

How Can Estate Planning Mitigate The Impact of A Sudden Disability?

How Can Estate Planning Mitigate The Impact of A Sudden Disability?

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John never gave much thought to the possibility that he could become disabled until a sudden work injury sidelined him for months.

As a result, his core activities were severely limited. So was his ability to earn income in the same way he had before. He’d need to engage in a lot of rehabilitation to make his way back to normal, and it looked like a slow recovery.

Planning for a potential disability within the scope of estate planning is important. If you work for a living and rely upon an income stream, a disability can hamper your ability to earn income and maintain your standard of living. So if you can’t work – or do as much work as you used to – you need a plan to make up some of the income.

One way to do that is through disability insurance, which will provide a certain level of income replacement to cover basic expenses like food, housing, and certain bills. It acts as a safety net to guard against going from full income to zero income in the event of a continuing disability.

Why Does This Come Up In Estate Planning So Much?

Estate planning focuses on long-term goals, legacy, and accumulation and growth of assets both for yourself and potentially for future generations. It’s important in the estate planning context because to protect your goals – and achievements – against a sudden or unforeseen event from happening.

Also, estate planning contemplates naming an agent who can act on your behalf in the event a disability prevents you from acting for yourself. This is done with powers of attorney, health care directives and documents that allow an agent to step in and help you with day-to-day decisions. This kind of planning determines who will make decisions and administer assets that already exist. This is a different question than ensuring that income is still flowing to cover your needs.

For Business Owners, Estate Planning Couldn’t Be More Critical

Many small businesses are dependent on the owner being present at his firm, running things day-to-day, meeting with current and prospective customers, etc. If he’s not there, he earns no money. Yet, he has to take care of his family, right? They may not have the luxury of sick days, vacation days and personal days. And if you’re unable to work on the business (or in the business, whichever it happens to be that day), the wheels aren’t going to turn. You won’t be actively participating in the business and the income is not going to come in. For the small business owner, planning for disability is essential.

If Employed, Seek Adequate Coverage.

If you are employed by a larger organization, there may be a form of disability insurance in your benefit package. If so, it’s important that you look at it to see what exactly that covers, and when. It may not provide everything that you would want, for example:

– It may be time limited
– It may have a delayed starting point
– It may apply to a very reduced portion of income
– It may cover the salary only

In other words, there can be many limitations to it to be aware of, so you want to make sure that it’s not less coverage than what you want and need.

Unless you are financially independent from needing to do any kind of work, it is important to know how income will flow if you are unable to work. Estate planning is not just for what you can control. It includes addressing less predictable things too. For a strategy session, call us at 312-278-1187.

The Unintended Consequences of Holding Real Estate in Joint Tenancy

The Unintended Consequences of Holding Real Estate in Joint Tenancy

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Marsha knew she wanted to leave her house to her only son. She didn’t want anything too complicated.  Then she had what seemed like a good idea: If she put a property in joint tenancy with her son, perhaps both of them might be able to avoid issues with probate later on.

Life was smooth for a while, but as the years went by, the relationship between Marsha and her son deteriorated. Now she wants to sever the joint tenancy, but finds that it is harder to do than she expected.

What is Joint Tenancy?

Joint tenancy is a form of co-ownership where multiple people own an undivided share of an asset and its attendant responsibilities. Each person has the right to use it. The last person left alive becomes the owner of the asset.

In this example, when Marsha passes away, her son will own the property outright. If her son passes first, Marsha will own the property outright. There will be no probate proceeding at that time. The ease of transfer to the surviving tenant usually is viewed as a positive benefit.

Things in life can change, however, whether due to family dynamics, financial considerations, business pressures, or something unexpected. Suddenly, the joint tenancy potentially can become an impediment. For example, if one party wants to sell the property and another wants to keep it, the joint tenants need to reach an agreement over what to do. Disagreement among joint owners can lead to disputes, soured relations, and even litigation to partition – or divide up – the ownership interests. Similarly, one cannot readily change or reverse the joint tenancy without agreement.

Another problem is that most joint tenancies do not provide protection against creditors of one of the joint tenants. (There is an exception for a marital residence held in a type of joint tenancy called tenancy by the entirety) If one of the joint owners has debts, at least some of the jointly-held assets may be utilized to satisfy those debts.

Other Pathways

Fortunately, there are other alternatives to joint tenancy. Marsha, for example, had other options to make sure that her son received the property without the need for probate after she passed away, while preserving her rights to potentially modify or to sell the property if necessary.

She could have set up an appropriate kind of trust. In the case of real estate, she could also set up a land trust, or she could have recorded a transfer on death instrument. Each of these options would have avoided the need for probate of the real estate, and, if set up appropriately, would have had mechanisms to allow her to make changes during her lifetime. The respective benefits of these options is outside the scope of this post – but is within the scope of estate planning.

If you’re considering a joint tenancy for real estate or other investments, talk to us first. Setting up the right plan can minimize the risks and unintended consequences that can impact you in years to come. Call us today at 312-278-1187 to schedule a strategy session.

Cornerstones of Estate Planning

Cornerstones of Estate Planning

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Although the goals and design of estate plans vary from person to person, there are a few cornerstones of estate planning. Here are three things to keep in mind to make the process as easy as possible.

Estate planning is a confidential process.

Estate planning takes into account your needs, goals, objectives, beliefs, and values. In order to shape the plan to best fit all of these considerations, estate planning involves some questions that are not necessarily a part of everyday conversation. It touches on some sensitive subjects, such as your family, relationships, assets, liabilities, and personal values. But the answers only are used to formulate the best plan possible.

We can only plan for what we know about.

Estate planning can be forward-looking in its approach, but will focus on the goals, people, and assets that you identify. It usually is best to address all of the considerations together in one plan if possible. Planning for only some of the assets, or omitting real estate located out of town, may cause one or more undesirable outcomes.  These may include having to open an ancillary probate case, needlessly giving up certain tax strategies, or other costly results. Therefore, it is best to aim for one plan that addresses everything together.

Focus on the future.

When doing estate planning, do not worry about the shape of your family tree. Everyone has one. It undoubtedly is made up of many people, each with many stories accumulated over hopefully many years. Some of these people and their stories will be a source of pride. Others may be less so.

With that as a starting point, estate planning involves looking forward, choosing what you want for your family – in terms of stability and security, and knowledge and values, as well as personal and financial health – and then deciding what parts of the past and the family tree are useful in constructing the plan. The planning process will help you take stock of what to account for and build upon, without getting mired in the past. At its best, estate planning can strengthen and improve the prospects for a brighter future.

Are Trusts Recorded?

Are Trusts Recorded?

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As a part of their estate plan, Jim and Mandy decided to create a trust for their home and certain accounts they wanted to set aside for their children. Then Jim wondered whether the trust would be a public record.

The central governing document for a trust is the Trust Agreement. The Trust Agreement functions similarly to a contract. They typically are not public records, so their terms – and the trust holdings — usually would be private.

There are some situations where certain aspects would be evident from the public record, however. For example, the transfer of real estate into or out of a trust occurs by recording a deed. The same procedure applies to other types of real estate sales and transfers. And at closing, the trustee may be required to certify that the trust still is in existence.

Similarly, a bank or financial institution may require certain documentation to establish the genuineness of the trust before opening a new account or re-titling existing accounts.

As a general matter, however, the terms governing the trust are intended to be private. This is a stark contrast to the nature of a probate proceeding, which may be necessary when someone dies without having established a trust, and relies instead on a will alone – or has no will at all. In such cases, the filings made in the probate case will be accessible as court records.

The privacy of a trust is one aspect that makes them popular. Their ability to avoid probate proceedings for the assets they hold is another, as is the continuity, stability, and security they can provide.

The trust that Jim and Mandy chose had these features.  When they learned this, they realized that their trust could become very beneficial to their family over time.

Have questions about how to start on an estate plan? Call us today at 312-278-1187 to schedule a strategy session.

Are probate records public?

Are probate records public?

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Jaclyn’s sister Mary had just passed away, and Jaclyn was struggling to understand her late sister’s records and accounts. Although Mary had been well off, she had never put a will or other estate plan in place. With a mountain of paper surrounding her on the kitchen table, Jaclyn wondered how much of it would become public.

The general rule is that probate records, like other court records, are public.

Probate begins with the filing of a petition with the probate court, either to have the will admitted or to have a representative appointed to administer the estate of someone who died without a will. Other proceedings in the probate court may follow. The probate process also involves publishing a legal notice to the creditors of the person who died.

The documents filed with the probate court, the court orders, and the notice to creditors all will be public.

Because probate records are public, it is important for the executor or representative of the estate to be aware of the potential for people trying to exploit the probate process for their own benefit. Communications related to the estate or its assets, or the probate process itself, should be evaluated with caution.

The public nature of such proceedings and the cost and time they can take are reasons people prefer to avoid probate proceedings. However, there are only a few ways to do so.

One way to ensure that one’s own estate will not be subject to probate proceedings is to establish an estate plan with a trust or other mechanisms to ensure that the assets will be transferred at death to the beneficiaries. With proper planning, one can avoid exposing the assets to undue risk, which can sometimes occur with joint tenancy. With a trust, the beneficiaries will enjoy a seamless transition and privacy not possible with a probate case.

Mary could have done this for Jaclyn, saving her time and stress, and possibly a lot of expenses too. Estate planning has the potential to do so for families everywhere.

Three Insurance Mistakes That Can Drain Your Assets

Three Insurance Mistakes That Can Drain Your Assets

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Most people don’t think about their insurance coverage while going through their daily routine. Yet some omissions can prove costly. Here are some risks that could potentially drain off everything that you’ve worked for, and some strategies to prevent that from happening.

Disability

Let’s start with your income. Financial well-being is often tied to income potential, including being able to go to work and earning a living. Yet, if an injury or illness interferes with your ability to work, you can quickly eat through your savings. You can’t necessarily prevent the injury or illness, but you can prevent having zero income as a result. One way to avoid an undue drain is with a disability insurance policy, which can cover a portion of the income lost during a long disability. This will provide funds for basic needs such as food, housing costs, medicines, and clothing. Although limited to the basics, it stems the losses by offsetting some of the income that would have been earned.

Life Insurance

If someone in your household were to pass away, how would you cover the mortgage or the cost of education? How would you cover the immediate loss of income to ensure that the surviving family members can weather that storm and figure out what their next steps are?

Life insurance can be critical here for covering existing liabilities and some of the lost income in the near-term. It’s especially important when there are young children in the picture, but can also be important to make sure that a spouse is taken care of and any existing liabilities or special needs are addressed.

There are different kinds of life insurance, with different features, costs, and benefits. Although beyond the scope of this post, there are multiple choices in how to meet this need. In each case, the death benefit provides relief of immediate financial needs.

Liability Insurance

Another aspect of planning involves creating an insurance strategy against potential liabilities. While home and auto insurance are familiar, the amount of coverage provided, and any limitations or exclusions are important considerations. Although the State mandates certain minimums for your automobile, and a lender may mandate certain coverage for a home, don’t rely on them. Explore higher levels of coverage. In many instances, significant upgrades in coverage may be available for small differences in premium. Also, consider adding an umbrella policy.  Layer it with other coverage to provide extra protection against liabilities in excess of your homeowner or automobile policy limits.

 

While planning for your estate, it’s important to fill any gaps which could become a drain on your assets. Let Windy City Legal help you to be aware of available options to make an informed decision.

DIY Estate Planning: Too Good To Be True?

DIY Estate Planning: Too Good To Be True?

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Samantha, like so many people, knows deep down that she has to have an estate plan. But after putting it off, she jumped in when her sister Jill just told her about a new website for DIY estate planning that offers an array of templates that she can simply download off the Internet. How convenient, right?

Well…maybe not so fast.

Samantha is now learning the hard way that just because one is able to sign up for a service online and answer a few questions, it’s not the same as having a trained professional help her plan for occurrences down the road. Plus, a number of her questions don’t fit in a neat little box that’s easily addressed through some “FAQs” she has to sift through. Frankly, she doesn’t feel good about having to serve as her own attorney, which is precisely what she feels like. Too bad she’s already paid for something that may be able to deliver her paperwork but still can’t address all the answers she needs.

DIY (Do-It-Yourself) estate planning can be alluring for many of the reasons that lured Samantha in to give it a try, from speed to apparent cost-effectiveness. On the surface, the idea of getting your plan done quickly may be quite appealing. Yet, estate planning is an area that requires precision, and those templates that are so easy to download don’t provide such guidance for precise answers.

As a result, it can be entirely possible to run through the process of estate planning in a Do-It-Yourself format and all you receive from the platform is a product that isn’t going to work as a valid estate plan. This can be a tragedy with a number of unintended consequences. For one, imagine if your family members have been under the impression that you created an estate plan when, in fact, you did not.

Another example of where the DIY approach can fall through is naming an executor and heirs. Unfortunately, some templates invite answers such as, “One of my brothers or sisters should be an executor.” That may not be good enough.

Yet another potential problem is with distributions. For example, a template may not prevent something general like, “whatever my sister Susan decides is best.” That is not a definite provision — and it’s not Susan’s will, it’s yours.

Indecision of the above nature could invalidate your estate planning documents. So after you’ve gone through what may be a great deal of effort and expense, you could find yourself with very little to show for it if you plug in answers like that.

Another problem with the DIY approach to estate planning is a failure to account for all the assets. Estate plans have a number of functions, one being to guide the executor or successor trustee to what assets might exist, as well as making sure that those assets are conveyed or accounted for properly. When sitting in front of a screen, filling out a form, it’s unlikely that you may be fully taking stock of all your assets. A template that you download or fill out online may or may not actually remind you to look in all the categories that we might ask about. And should you leave out something, it could be a problem later, or may be transferred to someone you did not intend.

Long-Term Consequences of DIY Estate Planning

Online templates are also unlikely to advise you how to deal with retirement assets, or the benefits and costs of one strategy versus another. The value of such planning can serve as a foundation for significant growth or savings over time, however.

Another failure from doing it yourself is actually completing it yourself. At the end of the process, the documents need to be executed properly. Chances are you’re not going to be able to do that from the computer room of your house, but until it is it may not take effect.

Also, DIY estate planning generally is not going to look for potential sources of liabilities that you can address while you have time to do so, or provide alternatives which could be beneficial.

Finally, life happens and things change. Your estate plan needs to keep up but these forms and template-based systems are not necessarily going to keep pace with you. Nor are they going to change with you to reflect your current goals. Without the benefit of someone advising you, you’re probably not going to think about your estate plan very much in the future. Unfortunately, that could be the biggest cost of all, particularly if things change and you’re not keeping the plan up-to-date.

Look beyond the quick methods of doing estate planning, and remember the people you’re planning for deserve so much better – an approach that’s customized around your life’s ever-evolving journey. Arrange a strategy session with Windy City Legal to get started.

“I’m An Only Child. Do I Really Need A Probate Attorney?”

“I’m An Only Child. Do I Really Need A Probate Attorney?”

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When Ed’s father died, Ed didn’t think he would need to talk to a probate attorney. After all, Ed was an only child — what did he have to worry about probate in the way of other brothers or sisters to contest a will? Unfortunately, what Ed would come to realize was that there were a lot more issues that had to be dealt with to settle bills, transfer accounts, sell his father’s house, and more.

It’s easy to assume that being an only child is a formula for avoiding probate court, but the reality is that a number of questions must still be answered.

What are the assets?
In addition to the personal possessions, there may be financial accounts, investments, real estate, and other things to think about. Banks will require proper documentation to transfer accounts. And when real estate is among the assets, there’s a good chance that probate may be required. These considerations can necessitate a probate proceeding, even if only one child survives.

What are the liabilities?
Bills, claims, and other obligations also can present an issue. What needs to be paid, and when? What happens with benefits received after the recipient’s death? What happens if there is ongoing litigation or potential claims? These are topics for which guidance may be needed.

What else needs to be done?
Even if the assets and liabilities of the decedent are such that a probate proceeding is not required, there may still be final tax filings due. And there may be other things which the surviving heir may want assistance with, such as if there are business interests, assets that will decline in value if left unattended, or other specialized circumstances.

Whether a probate proceeding is necessary depends on the assets, liabilities, and other circumstances of the decedent. In some cases, probate may be avoidable, but some questions need to be sufficiently answered through a conversation with you and a probate attorney in order to make that determination. But the fact that only one child survives often is not the deciding factor.

The easiest thing to do is to have a strategy session, which can help identify whether or not a probate proceeding will be required. Call Windy City Legal today at 312-278-1187 to schedule one.