Estate Talk Blog

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.

 

Now it’s up to you. One way you can choose to get started is by contacting Windy City Legal for an estate planning strategy session.

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. Talk to us about the difference of Estate Planning for Life today by arranging a strategy session with Windy City Legal.

“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.

Lessons From Aretha Franklin's Estate Plan - Or Lack Thereof

Lessons From Aretha Franklin’s Estate Plan – Or Lack Thereof

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When the iconic singer passed away recently, Aretha Franklin’s estate plan had a few surprises – starting with the fact that it didn’t exist, causing a lot of questions to quickly surface in the days after her funeral.

Dying Intestate And Its Implications

Franklin died “intestate,” or without having a will. That opens a number of questions, starting with who are the heirs? Who are the family members that will then have an interest in her estate?

Since Franklin did not specify individuals that she wanted to transfer her estate to, the law will have a formula that prescribes who is entitled to receive assets and who is not. But others may claim to have an interest, increasing the time and cost to get her affairs settled.

Who is the executor going to be?

Franklin did not nominate anybody who she thought would be a good candidate to administer what is in the estate or who can identify the assets and any bills that need to be paid. This opens the door to people without a close connection to Franklin seeking appointment as executor, sometimes for their own reasons.

Don’t make the assumption that the closest family member or any interested family member is going to necessarily be the person best equipped to handle the executor role either. It should be a person who has the best grasp of the decedent’s assets and liabilities. That may be a family member, but does not have to be.  In the case of Franklin, an accomplished performer and famous individual, there’s going to be a lot to account for.

What are the assets that are part of the estate?

In the absence of an estate plan, it is likely that the assets and accounts are not going to be clearly identified. The person who is ultimately appointed as executor is going to have to identify the financial accounts, real estate, royalties from recordings and performances, digital assets, and any income from online distribution of music and videos.

Since Franklin took no other steps in her estate planning, the proceedings to settle her estate become a matter of public record. Due to her notoriety, her estate may be exposed to a greater number of contests from people trying to get a bigger piece of the total estate. As you can imagine, so much of this could have been potentially avoided with a comprehensive estate plan.

Is this predicament specific to famous people?

No. This happens all the time in families every day. Only because Franklin was a public figure does it seem like the situation is unique to her, but unfortunately, it’s not. People try to maximize whatever they think they can get out of an estate. In their case, just as for Aretha Franklin’s family, having an estate plan may have avoided such headaches or her family.

Ultimately, it was Aretha Franklin’s responsibility to put an estate plan in place. She would have had the flexibility to design it as she sought fit, and was not required to seek her family’s approval.

Usually not having an estate plan increases, rather than decreases, the potential for disagreement among family members.  You do not solve anything by not making a decision on your estate plan, even if the dynamics of a family mean that every decision has an imperfection.

One Door Closes, Another One Opens

Sometimes a disagreement opens another door to opportunity. For example, if a particular asset is a source of disagreement, sometimes it can be conveyed to a charity instead, thereby eliminating the source of disagreement while simultaneously contributing to the betterment of the community.  In some cases of larger gifts, it may create a tax benefit to the estate as well.

There may be a potential win-win at the end of all this complexity – a benefit for the family and a benefit for a charity. Talking through these possibilities with an estate planner may actually yield some solutions that weren’t necessarily apparent before.

Talk with an estate planning attorney at Windy City Legal today about how our approach of Estate Planning for Life can address some essential questions you’re facing today and provide a solid foundation for the future.

Estate Planning When A Child Has Substance Abuse Issues

Estate Planning When A Child Has Substance Abuse Issues

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Cindy and Bill have raised four great kids and they have a close-knit family. Lately, however, the situation is far from picture-perfect with one of their children, Tony. Following a surgery, he became addicted to the pain killers that were prescribed for him, and Tony fell into a substance abuse problem that he continues to deal with. Cindy, Bill and their other children are trying to get Tony the help and support he needs. Meanwhile, Cindy and Bill found themselves struggling with how to treat Tony in their estate plans, torn between a desire to take care of their children while not wanting to feed Tony’s addiction.

One solution can be to provide for the beneficiary or child through a trust, subject to certain restrictions so that the individual doesn’t just get the money to do with it whatever they please. A trustee in place or a third party will make sure that the assets are not dissipated or used for improper purposes.

This way, the trust is limited to taking care of a beneficiary or child’s health, welfare, housing, or education as appropriate. The assets will be preserved, rather than provided directly to someone who is not capable of responsibly handling them.

Generally, there must be a deposit of certain money, investments, or other assets into the trust. Then all requests and payments can flow through the designated trustee, so they only are made for treatment or support, and then directly to the provider.

That way, the beneficiary does not have the ability to get to the assets directly, nor to handle any payments. Instead, the assets are used to cover their needs.

What happens once they get the help they need?

Let’s go back to the example of Tony, the troubled child of Cindy and Bill. He’s now gone through a treatment program successfully and after quite some time, it’s clear that he’s put this painful chapter of his life behind him. He’s living a healthier life. With this in mind, can he now get a different portion as outlined in the estate plan as his life has changed for the better? It depends on how the trust is structured.

Addictions are strong. It’s good to have certain options in your estate plan to protect against a relapse. If they have completed treatment and made a recovery, the question becomes whether the trust should continue as is, be distributed in whole or in part, or whether any terms should be changed. That depends on what the trust allows, as well as the inclination of the trustee based on the progress made by the beneficiary.

While a trust can act as a restrictive mechanism for the protection of the assets as well as the beneficiary, a trust also is a vehicle that can provide some hope, by making sure that there will be some ongoing support for the beneficiary during post-treatment recovery. When set up in this manner, it may alleviate the stress of re-entry into a normal routine.

If you’re seeking answers during the estate planning process of how to account for a family member struggling with an addiction or simply financial mismanagement, making a plan to account for them while reflecting your wishes is very possible. Talk to Windy City Legal to learn how to make it possible.

Estate Planning for your Digital Assets

Estate Planning for your Digital Assets

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When Michael was several years into his retirement, he felt that his estate plan was well up to date. He had addressed so many tangible assets in his life in that plan, from his home to his cars to a small but valuable art collection he and his wife had accumulated. Unfortunately, while the “physical” part of his estate plan was taken care of, Michael had neglected his digital estate planning. Specifically, he failed to address all the aspects of his digital life in that plan that were important – including all of his online accounts. So, once he passed away, he’d left behind quite the puzzle for his family to sift though and trace the answers to, which was the last thing they wanted to do in the midst of their grief.

How can your family prevent the same type of outcome?

Remember that digital assets need to be planned for in much the same way as the rest of your assets, so don’t marginalize them. Digital assets are easy to forget about because they become so ubiquitous to our daily life. Think about it – in a normal day, you’re on email, your smartphone, social media channels and using various web services. You’re also streaming entertainment services through music and television. Still, although it’s easy to not be conscious of it as you go about your routine, it doesn’t mean that it’s not something that needs to be addressed.

In an estate planning situation, you can decide to what degree that you’d like to inventory all of your digital assets, but one strategy is to have a list of service providers. It doesn’t mean including every account number or detail within that list, but by providing a list of banks, brokerages, advisors, and key online accounts, it will not be a complete mystery for whoever steps in later on.

What are digital assets?

And what needs to happen to ensure that this area of your life is as well covered as your tangible assets? Digital assets may include a range of things held electronically, from financial accounts, to files, photographs, social media, subscriptions, and on and on.

Financial Accounts
These can include:
– Bank accounts, such as checking, savings, certificates of deposit, etc.
– Brokerage accounts
– Retirement accounts

If you aren’t getting statements from these accounts through the mail and instead have set them up as paperless statements to be accessed online, some of these electronic communications take on a higher priority of your focus. An agent acting under a power of attorney needs to know what accounts exist, which bills need to be paid, and how to pay them. Similarly, an executor needs to be able to identify where assets are located, including where accounts are held.

Cloud Storage
Dropbox, Box, Google Drive, iCloud and other kinds of cloud services are vital because they may serve as a place where you currently store records, photos, documents, music and other types of files.

Business Records
Do you own a business and have a place where business records are stored? If you envision someone stepping in to take over your role or you’re trying to sell the business, having access to those business records may be very important.

Social Media
There are far too many social media services and platforms to mention, but to the extent that you have photos, subscriptions, etc., it’s smart to have a conversation now about these assets from your “digital estate” through our planning process.

Online Payment Systems
In the last several years, there has been a proliferation of online payment systems and applications in which people can exchange money back and forth, such as PayPal. There may be money sitting in those kinds of accounts, which would become part of the estate.

Subscriptions
Yes, that Hulu, Netflix or Amazon Prime subscription is going to be important for someone stepping in, either to maintain or deactivate. So keep track of any active ones you may currently have.

Passwords
With passwords, one has to be mindful of security risks should they fall into the wrong hands. As an alternate to writing passwords down, there are online password services that will allow you to set up access for a family member or an agent to use in case of an emergency. This is a way to expediently handle the proliferation of accounts and passwords, without compromising the security of the underlying accounts.

Cryptocurrencies
If you hold cryptocurrencies, you’ll want to provide instructions for how to access an account, identify the brokerage or exchange, and if necessary, conduct any exchanges. Since cryptocurrencies can be relatively volatile, it’s important for an agent or successor to have access without undue delay.

Cryptocurrency exchanges may be outside of Illinois jurisdiction, and possibly United States jurisdiction. Therefore, should things proceed to probate upon your passing, it’s essential that you provided a detailed set of instructions for the designated person who is going to step in for you.

We Can Help You Take Inventory Of Your Digital Assets

Besides a trustee, executor or agent, who else should be made aware of your digital asset list? It can include not only a contact list of people, but also a contact list for service providers, such as your accountant, financial planner, banks, brokerages, cloud storage providers, and more.

One thing is for certain – the scope of digital tools will continue to grow. That being the case, it’s a reason to take stock of them for an estate plan and if you have an existing estate plan that hasn’t been updated in the last couple of years, it’s time to take another look to ensure that it encompasses any digital assets. Windy City Legal can help you on two key fronts:

1) Advising you on how to assemble your inventory for a digital estate plan as far as what should go on your list, and

2) Creating the formal language necessary for a trustee, executor or agent to execute the appropriate steps necessary within certain documents pertaining to your digital assets.

Don’t view your digital assets as something nice to have in your estate plan. Many of them should have a place in your estate plan along with more traditional assets. Addressing them and incorporating them an estate plan will give your family the continuity and clarity they deserve. To get started on your digital assets estate planning, call Windy City Legal for a consultation at 312-278-1187 today.