What is probate?

What is probate? In Illinois, probate is a process in the courts that may be required after a person dies to establish the validity of any will, identify who will inherit the property of the decedent, and to pay valid debts and taxes. The executor is the person in charge of compiling the necessary information, handling the affairs of the estate, and accounting for the assets, payments, and distributions.

Probate may or may not be required, depending on what the decedent owned and how it was held.

When the deceased owned assets worth more than $100,000 in his own name, or real estate of any amount in his own name, probate is required.

Assets held in trust, held in joint tenancy with a right of survivorship, real estate held in tenancy by the entirety (if the spouse remains alive), and real estate for which a transfer-on-death instrument had been recorded, may not have to go through probate, however.

Also, accounts and contracts for which a beneficiary has been designated (such as retirement accounts, life insurance policies, and annuities) may be payable directly.

The probate estate is an entity subject to taxation on income and gains that accrue while the estate is open. In addition, Illinois estate taxes will be due if the estate has a value of $4 million, and federal estate taxes will be due if the estate has a value of $5.49 million (for the 2017 tax year).

Before the estate is closed, the executor must prepare a final accounting for the court to report the income, expenses, payments, and distributions.

If you’ve been recently named an executor or personal representative of an estate, Windy City Legal can help navigate the process with you so it’s less intimidating and more unifying for the family. Talk to us about the experience with a different kind of estate planning attorney: Windy City Legal. 

Five pitfalls of online estate planning platforms

Internet services that purport to handle estate planning are proliferating. Unfortunately, they may provide a false sense of security.

The first problem with them is actually taking action. An estate plan does not come into being by signing up on a website, yet too many people fail to complete the process to which they have subscribed.

A more significant problem is that internet-based templates frequently are not designed to adequately address the needs of the subscriber or their family. People rarely present generic goals, objectives, or dreams, and there is little reason to adopt a bare-bones estate plan that often skips over such matters.

Clients undertaking estate planning with a trusted advisor sometimes learn of new tools and strategies that may be available. Working on your own does not offer the feedback and opportunity to discuss other facets, or future goals, or ways to meet them.

A similar problem with self-guided documents is a lack of guidance on key issues. That raises the risk of inadvertently leaving out an important element of the plan, inserting something incorrectly, or creating unintended results. What is the point of a plan that can not be given effect?

Finally, if the documents are later found not to have been executed properly, they will be given no effect at all. It would be as if you had never done them at all.

Working with an estate planning attorney allows you to make sure that both short and long term objectives are met, to avoid some of the guesswork and pitfalls of going alone, and to learn about tools and opportunities that may be available. It also can establish a framework for a lasting legacy – not just of assets, but also of experiences, philosophies, and values.

Unquestionably, there are a lot of things that we have become accustomed to doing for ourselves. But the possibilities of estate planning are too extensive to forego guidance.

 

Three Reasons for Estate Planning when Kids are Not in the Picture

Sometimes people put off estate planning because there are no children in the picture, or because they do not relish leaving assets to them. But that often represents an opportunity of their own that gets lost.

1. You can still plan for you.
Estate plans contemplate long-term and lifetime goals, as well as planning for a more secure future. These benefits do not need to wait simply because children are not in the picture at that moment. By undertaking the relevant planning, you can still make sure you are on an appropriate path for yourself, and have addressed any gaps and liabilities that could hamper your financial security. Also, estate planning includes certain health care planning, the benefits of which should not be dismissed.

2. Securing your values and experiences.
A legacy is not just the assets to be transferred, but also the experiences, responsibilities, and values that can be instilled. Doing so increases the likelihood that the legacy will have a positive impact and lasting value. Whether your beneficiaries are children, relatives, friends, or philanthropic causes, estate planning allows you to bring those people into the conversation and prepare them as beneficiaries.

3. Planning for the personality of beneficiaries.
Some tools in estate planning allow you to set particular objectives or incentives. For example, some gifts may be made contingent on particular actions, such as enrolling or graduating from college, starting a business, or the like. Others may be structured in such a way to assist a beneficiary with educational or other costs, or to provide a certain distribution over time, without dumping assets to the point they are likely to be dissipated or spent frivolously. In this way, your plans can be customized to fit the nature and personality of your beneficiaries.

Estate planning is part of a process of building wealth over time. There is no need to wait for a perfect situation to begin, whether that include children, or a certain number of children, or anything else.

Three problems with planning to leave nothing

Some people believe that they don’t need an estate plan, because they don’t plan to leave anything behind. That approach carries some side effects that warrant consideration.

First, it implies a lack of financial planning, which creates the potential to outlive one’s savings. As life expectancies increase, the amount one needs to save for retirement increases as well. Otherwise, the quality of life may plummet sharply when savings dwindle.

Conversely, there remains a potential to leave an amount with no estate plan in place at all. That means foregoing the chance to prepare the next generation to receive those assets and handle them appropriately. It also means foregoing the opportunity to manage how the assets will be transferred, how they will be received (and either preserved or dissipated), and whether any strategies to mitigate costs or taxes will be implemented.

Perhaps more troubling, it marks an indifference to one’s own legacy. Estate planning includes the opportunity to inform younger generations about family values, including those of financial responsibility and stewardship, and to prepare the beneficiaries to actually receive and carry their share of it. Legacy means more than just property; it includes the experiences and values collected through life that can be instilled in and passed to others. Refusing the opportunity to do so condemns the next generation to lose out on such wisdom, and to find it by chance or not at all.

This does not mean formulating an estate plan to transfer assets blindly or without thought. Rather, it means providing the best chance to preserve something meaningful for one’s family and beneficiaries.

Why an old estate plan can be costly

Estate planning is not intended to be done once and then forgotten. Instead, it should be revisited every few years.

One of the most stark reasons is that people come and go. Agents and executors named a long time ago may no longer be able to serve, or it may not be in the individual’s best interest to have them do so. For example, if an agent or executor named years ago were too frail, someone else should be designated. At the same time, people move away. If an agent is located across the country, will he be as available as when he was in town? And in the case of a divorce, the plans and beneficiaries should be revisited.

Also, the legal environment changes over time. Estate tax thresholds move up and down. Healthcare options and documentation requirements change, such as when HIPAA took effect. And modern estate plan documents address a much broader range of topics compared to those drawn years ago.

Finally, technology changes have opened new frontiers in estate planning. Today, most people have a digital estate. Business records, financial statements, and work product may be stored in a cloud. Photos, websites, and social media may similarly be posted online. Ownership and access to these types of accounts was not an issue until recently, and would not be addressed in an older estate plan.

Each of these is a potential gap in an older estate plan. If left unaddressed, one or more of them may prove costly. If it has been a long time since the plan was created, or if major life events have occurred in the intervening years, it is time to revisit the estate plan and make any necessary revisions.

 

How to use a Transfer on Death Instrument to avoid probate of real estate

Normally, real estate is transferred through probate upon the death of the owner, unless another arrangement is made. One way to avoid probate for Illinois residential real estate is through the transfer on death instrument, or TODI.  This is executed by the Owner in favor of one or more beneficiaries. The TODI must be recorded with the Recorder of Deeds after execution, but the transfer does not take effect until the Owner’s death.

Requirements for Validity

The TODI must comply with the requirements for the execution of a deed (age 18 or older, of sound mind, signed in front of two witnesses and a notary public); must state that the transfer occurs on the Owner’s death; and must be recorded in the county where the real estate is located prior to the Owner’s death.

Revocation

Revocation can occur through a subsequent TODI that revokes the prior beneficiary designation, or a revocation instrument. Both must be executed with the same formalities as a TODI and must be recorded prior to the Owner’s death to be effective. All owners must revoke for revocation to be effective. In the event multiple TODIs have been recorded, the most recent controls.

Owner’s Interest in the Real Estate

During the Owner’s life, the beneficiary has no legal rights or interest in the property. The Owner may sell, mortgage, lease, or deed the property during her lifetime without the consent, knowledge, or involvement of the beneficiary. If the real estate is sold or transferred, the bequest will fail.

Upon the transfer, the beneficiary takes title subject to all liens, encumbrances, mortgages, assignments, contracts, and options to which the property is subject at the Owner’s death.

Death of Owner

When the Owner dies, the TODI designated beneficiary must record a Notice of Death Affidavit and Acceptance with the Recorder of Deeds in the county where the real estate is located. Once recorded, the transfer is effective as of the date of the Owner’s death. If not recorded within two years of the Owner’s death, the TODI will be void and ineffective.

The real estate passes to the beneficiary without convent or warranty of title, even if the TODI contains provisions to the contrary.  The beneficiary receives a step-up in the basis of the real estate to the value at the date of death of the Owner.

Uses and Limitations of a TODI

TODIs can be a cost-effective method to transfer real estate outside of probate, particularly for persons who have limited holdings and who do not need to support dependents or other needs better handled through a trust. They are revocable and do not prevent the Owner from selling the property during his life. TODIs do not provide substantial asset protection features, however, nor do they address any other aspects of the estate.

 

How to transfer your out-of-state vacation home without probate

Having an out-of-state vacation home can be delightful. But when the owners pass on, it can be a headache for the next generation.

When a person dies, assets that he owns in his own name are subject to probate. Probate is a process in court for the accounting of assets, payment of debts and obligations, and distribution of what remains.

When those assets include land located in another state, then an ancillary probate may also need to be opened. An ancillary probate is a second proceeding in another state. This usually adds to the time and cost of settling the estate.

Fortunately, there are alternatives to holding title to the vacation property outright. One way is to hold the real estate in a trust. Transferring the property into a trust means that its ownership will be subject to the trust provisions. For example, the grantor of the trust can reserve the use of the property while he is alive, and have it pass to the named beneficiaries in the manner specified in the trust agreement, rather than through probate.

That is one way to ensure that the trips to that second state are to actually use the vacation home to relax, not to attend court proceedings. It also saves on legal fees and costs that would be associated with opening a second case in that second state.

In order to take advantage of this approach, the trust agreement must be executed, and the property must be transferred into the trust correctly. But doing so is another step forward in building and preserving a legacy for future generations.

 

Putting residential real estate in trust

Placing residential real estate into a trust can sometimes be advantageous. Owning real estate in that fashion can avoid probate, and provide some asset protection benefits to the beneficiaries.

Covenants restricting transfer are ubiquitous in mortgages, however.

A provision in a federal law called the Garn-St. Germain Act exempts transfers of residential real estate of less than five units to a revocable trust where the borrower is a beneficiary and the transfer does not change the occupancy of the property. This allows such a transfer (subject to certain limitations) for estate planning purposes, without affecting the loan or triggering a due-on-sale clause.

It should be noted that the exemption does not allow transfers to irrevocable trusts or limited liability companies (LLCs). Those would change the ownership of the real estate, and would be in conflict with the lender’s secured interest in the real estate.

To proceed, the transfer should be advantageous to the grantors and trust beneficiaries from an estate planning perspective.

There are some other considerations as well, including municipal certifications and administrative costs to such a transfer, compliance with any homeowner or condominium association requirements, and insurance ramifications.

Landowners should consult their attorney to determine whether such a transfer is appropriate for their situation, and to ensure compliance with the exemption.

How to prevent a physical disability from becoming a financial catastrophe

I recently ran into a friend after not having seen him for a while. When I asked how he had been, he said, “I’m just getting back into the swing of things. I had hurt my back, and was out of commission for a good few weeks. I’m all out of vacation time, but at least I’m feeling better.”

He was lucky not to have lost more than vacation days.

Statistically, one person in four will have a disability for at least a period of time. If that should occur, what happens to your income? And if income were to stop, what happens to everything else? What if the disability lasted a couple of years, instead of just a few weeks?

One way to address this risk is with disability insurance, which covers a portion of one’s income during a period of disability. That way, at least the basics are taken care of.  Here are three considerations when evaluating disability insurance.

1. What degree of disability is required for the policy to kick in? For example, does it require the inability to do a current job, or to do any job? Or is it measured through other life functions?

2. How much time must you cover before coverage kicks in?

3. How much income will the policy replace during the covered period, and if your income increases during the life of the policy, can the amount of coverage increase too?

Guarding against unexpected events that could threaten income or savings is an important step in building a legacy. Given how frequently disabilities are reported, it is prudent to cover the potential for lost income adequately.

 

The most important investment isn’t traded

People sometimes ask what the minimum amount of assets is needed to start estate planning. The answer is zero – the idea that there is some minimum amount of assets is a myth.

No minimum dollar value is required, because estate planning is about the people who are close to you, and about planning for ways to build a happy life and a legacy. It is about identifying tools that are available, and putting them to work for you.

Keep in mind that everyone has at least a minimal estate plan, because state law provides certain basic defaults when a plan isn’t in place. They are a one-size-fits-all approach imposed upon those who do not act.

But those defaults are designed without regard to maximizing your legacy. Or to the strength of your family. Or to minimizing avoidable risks. To get those benefits, you have to put your own plan in place.

It is often said that the most important investment one can make is in yourself. Estate planning is an investment in growth and stability, and its cost becomes insignificant over time. And like most other investments, it begins with the commitment to take action.