The Unintended Consequences of Holding Real Estate in Joint Tenancy

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

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?

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.

Three Insurance Mistakes That Can Drain Your Assets

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.


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?

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.

Estate Planning When A Child Has Substance Abuse Issues

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

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.

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.

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.

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.

What is the difference between a springing vs a durable power of attorney?

A power of attorney is a document that allows the principal – the person signing it – to appoint an agent, or someone else to act on the principal’s behalf. For both healthcare and property, there is springing power of attorney and durable power of attorney. The one you choose can have a big impact.

A durable power of attorney becomes effective when signed, or a particular date if specified. It will continue to be in effect until the person who created it either revokes it or dies, or a stated expiration date is reached. In the event of an incapacity, the power of attorney should be in effect without further action.

A springing power of attorney is intended to become effective (or spring into effect) in the event the person is incapacitated. In theory, a springing power of attorney would allow the designation of an agent to be made, as if in reserve.

Unfortunately, the springing powers of attorney generally require that a doctor designate the principal as incapacitated, or unable to make decisions for himself, before the agent has authority to act under the power of attorney. This has led to greater uncertainty with a springing power than with a durable power.

There are at least three problems with a springing power that do not exist with a durable power.

First, there is the potential for delay. With a durable power of attorney, the agent could act immediately in case of an emergency. With a springing power, the agent must obtain the determination that the principal is unable to act. This may take days or weeks.

Second, state and federal law and regulatory requirements may inhibit the ability of the agent to obtain such a designation until he is authorized. One example is HIPAA, the Health Insurance Portability and Accountability Act of 1996. Designed to protect patient privacy, among other things, it creates a conundrum: an agent under a spring power cannot act until the principal is designated incapacitated, and he may have problems receiving the designation unless he has appropriate documentation from the principal waiving HIPAA’s requirements.

Third, a medical provider may have other definitions, beliefs, or incentives as to what constitutes incapacity. So while the doctor has no exposure to the principal’s daily needs for care, or for financial and business affairs to be maintained, that same doctor has the ability to withhold the very certification that allows the agent to act. In other words, a springing power enables a third party to thwart both the principal’s decision-making and the agent’s ability to assist the principal.

Because a power of attorney needs to be reliably in place should the need arise, principals should give serious consideration to whether a durable power or springing power best suits their needs, and for the springing power how best to manage the risks of certification, or effectively a veto, by a doctor.

Myth: “I Have To Give Up Control Of Assets I Put In A Living Trust.”

Do you have to give up control of your assets once you put them in a living trust? The answer is no – not necessarily. There are a lot of different kinds of trusts, to address many different goals and objectives. Also, some trusts are revocable and others are irrevocable.

For the purposes of this question, we’re going to focus on the revocable living trust. The word revocable means it can be changed – the trust can be revoked or it can be amended. (Irrevocable trusts are the opposite. They often do involve giving up a certain degree of control, in exchange for tax savings or other benefits.)

With revocable grantor trusts, the person (or couple) who owns the property and creates the trust often serves as the initial trustee. In the capacity of trustee, the grantor will have control of the property that is held by the trust. The trustee can sell it or exchange it. Financial assets can be invested. Real estate can be held for use, or it can be sold or rented, or another property purchased. Administering the assets as trustees rather than as individuals does not necessarily prevent the use of those assets.

A popular formulation of such trusts is for the trust assets to be distributed only after the grantors pass away. When that is the structure that is elected and implemented, the grantors should have access to the assets they have titled into the trust.

For more questions about wills, trusts and the types of considerations associated with estate planning, talk to Windy City Legal. No matter which stage of your life you are in, we’re here to help develop your estate plan to reflect it, and can help you keep it current as things change. It’s what we call Estate Planning For Life. Experience it for yourself by calling Windy City Legal today at 312-278-1187.

Dividing a Family Business in Equal Shares Might Be a Bad Strategy

Clients often express a desire to leave their estate to their children in equal shares. But when the estate includes a family business, that might not work.

For example, consider a situation where the father, Frank, has spent the last several decades creating and building a family business. Now as Frank ponders retirement, he wants to leave the business to his three children, Amy, Brian, and Colleen.

Amy is intensely interested in the business and has been working in it for the last several years. She knows the systems, processes, products, and clients. In fact, as Frank wanted to step back, Amy picked up the slack. She is ready to go immediately, so that the business keeps making money.

Brian is totally uninterested. He is an outdoorsman at heart, and hates the idea of being behind a desk of any kind.

Colleen has the aptitude for the business, but has a consulting job that has her working long hours. She is often out of town at client locations, and does not have the time to put into the family business.

Dividing everything equally would be unfair and impractical. Amy would be putting in all of the work for only a third of the profit. That is a recipe for disputes among the three children. It also may create other problems that arise in operating a business with absentee owners, from morale problems to governance issues. Worse yet, it would be possible for Brian and Colleen to out-vote Amy in any significant business decisions, even though they do not have any experience with the business or its operations, employees, culture, or products.

In other words, this is a case where an equal division would be unfair to Amy – and potentially also harmful to the business itself and to its employees.

Instead, Frank might think about other allocations of assets. One possible way is to designate the business to Amy and other assets for Brian and Colleen. A different strategy may be for Frank to purchase life insurance for benefit of Brian and Colleen to give them reasonably equivalent value. And there may be other possible solutions.

Estate planning fortunately allows a lot of flexibility to tailor a solution, and to avoid the kinds of situations that can impose stress on both the business and the family. If a small business is in the family, it pays to make sure that it will not fall apart because of – or due to – an artificial allocation among beneficiaries.