Monthly Archives: November 2013

Estate Planning and Marriage

Estate planning is important for determining the distribution of assets after death. However, property distribution after death can become a contentious issue that creates deep schisms in the family and can lead lengthy litigation. Fortunately, proper planning can avoid these issues.

RigsTake the case the hypothetical of Jim and Ann. Jim and Ann spent most of their lives married to one another. They had three children who are now adults.

Eventually, Jim and Ann got a divorce and lived separately. As Jim became older, he required around-the-clock care by an experienced nurse. As time passed, Jim and the nurse grew closer, with Jim eventually asking the nurse to marry him. Only a few months after the marriage, Jim passed away from a long illness. To his family’s surprise, Jim’s attorney revealed that Jim had revoked his old will and had intended to execute a new one; however, he passed away before doing so. Jim’s estate planning attorney also revealed that Jim left an estate worth $4 million.

Under these circumstances, Illinois inheritance laws dictate that half of the property would go to Jim’s spouse (despite them only having been married for a few months) and the other $2 million to his three children. It is easy to see why such a distribution scheme would invite legal challenges.

Jim’s children would likely challenge the distribution through a collateral attack on the marriage. They would argue that the judge should declare the marriage as invalid because Jim lacked the capacity to consent to the marriage due to his old age and deteriorating health. They could also argue that the nurse used her position as Jim’s caretaker to gain his confidence and manipulate him into marrying her.

Independently of the outcome in Jim’s case, estate planning can avoid many of these issues. An experienced Illinois estate-planning attorney would have surely recommended that Jim execute a prenuptial agreement prior to his second marriage and a new will contemporaneously with revoking his old one.

 

My Will is Better than Yours

A good estate plan includes a will. Wills are an efficient way to distribute property according to the person’s intent and avoid family fighting at the time of distribution. Wills have been around for a long time, and are part of the tool set of every experienced estate-planning attorney. A common, but serious mistake that people make is to use generic wills that they find online. Wills found online are problematic because they may not comply with the Illinois Wills statute and may leave gaps in the property distribution.

RigsAn experienced Illinois estate-planning attorney on the other hand, will have a personal relationship with her clients and ensure that wills reflect the nuances of each individual case. After drafting the will, the attorney will guide the client through the process of reviewing, revising, and executing the will.

An experienced Illinois estate-planning attorney will make sure that will execution process meets the requirements of the Illinois statute governing wills. First, the person executing the will must be at least 18 years old and must be of sound mind. The issue of sound mind is problematic when elderly people execute or amend wills, because unless done properly, these wills are open to challenges based on allegations of unsound mind.

Second, the will must be in writing and the person must sign it in front of two or more witnesses. There has been extensive litigation surrounding the finalization of wills. An experienced estate-planning attorney will make sure that there are no doubts about the validity of the will signing ceremony.

Revoking or amending a will also must follow a set of rules with which a local attorney is well acquainted.

For a will to be valid, it must follow a set of rules. An experienced Illinois estate-planning attorney will make sure the wills are appropriately and validly drafted for your individual situation; contact one today.

Caring for a Pet After Death

Planning for pet care after one dies is an area of estate planning that people often overlook. Sometimes, a family member will step up to take care of the pet. However, when family members are not willing or able to take on the responsibility of caring for a pet, the pet could end up in a shelter.

Discuss pet care with your estate planning lawyer.

Discuss pet care with your estate planning lawyer.

Fortunately, an estate-planning attorney will make sure that a strong estate plan contains adequate resources to provide for the pet. In Illinois, one can go about providing for a pet in two ways. However, both methods are not equal.

The first option is for the pet owner to make a bequest in a will to a family member providing resources to take care of the pet. While this method is easy because the bequest is usually part of the main will, it may not be in the best interest of the pet. Illinois wills usually have to go through probate, which can mean long delays before the funds are available for the pet care. Moreover, wills are open to challenges during probate, which may mean even longer delays.

Another way to provide for a pet is through a trust for domestic or pet animals. Illinois specifically allows these types of trusts, and allows courts to construe the governing instrument liberally to implement the transferor’s intent. Moreover, courts are able to consider extrinsic evidence in order to carry out the transferor’s intent in providing for their pet.

More importantly, these types of trusts do not go through probate, meaning that the funds are available immediately for the care of the pet. Moreover, the Illinois statute contains two additional important provisions. First, if there is no pet at the time of the death, any funds allocated to pet care in the trust would either follow the terms of the trust or estate plan, or if there are none, they’d go to the heirs of the grantor of the trust. Second, a court is able to reduce the funds in the trust if it determines that it substantially exceeds the amount needed for the pet care.

Planning for the care of a loved pet is very important to many people. If you have questions, please consult an Illinois estate planning attorney.