There are two (2) types of powers of attorney in Illinois. The first power of attorney is a power of attorney for property ("POA"). A POA for Property is a type of power of attorney where you appoint an Attorney-in-Fact to make financial decisions when you are unable to make your own financial decisions. Examples of circumstances where you might need a POA property. A car crash victim or a senior that is experiencing memory lapses or old age.
The second (2) type of power of attorney is power of attorney for healthcare. A power of attorney for healthcare is otherwise known as "POA Healthcare". A POA Healthcare is a legal document where you designate an agent to make health care choices for you in case of an incapacity. Without a POA Healthcare, your family, friends, or partner may not make healthcare choices for you in case of an emergency. More importantly, a POA for Healthcare describes whether you want feeding tubes or a DNR in your medical chart. A POA for Healthcare is a good idea because it also assists your agent to understand how you want your own healthcare choices made.
Sean Robertson is an tax attorney that concentrates in estate planning, estate and gift tax planning, asset protection law, and corporate law. Sean Robertson can be reached at (312) 498-6080 or (630) 364-2318 or RobertsonLawGroup@gmail.com.
Wednesday, May 19, 2010
Estate planning and Divorce
Divorce is unfortunately a popular topic when fifty (50) percent of all new marriages end up in a divorce. The next question is how do you design your estate plan in a manner that protect you or your loved ones from a divorcing spouse.
Estate Planning and Divorce
Divorcing spouses should amend their estate planning their estate planning documents. This is important because your assets will otherwise, go directly to your ex-spouse. Most ex-spouses (deceased that is) would not like this. In most cases, guardians should be chosen in case you or your spouse are deceased. A key question is who should manage any inheritance that your minor children or young adult would receive. Typically, some divorcing spouses are hesitant to allow their ex-spouse to assume control over their children's inheritance. Some adults are good with money and some adults are poor at financial management. Unfortunately, many people falsely assume that an inheritance will go to their children as planned. In most cases, a multi-year pay out of an inheritance will unlikely make it to its' beneficiary. A way to prevent this is to set up a trust and have a trusted friend or family member assume management over the trust funds. A trust is simply a written agreement created under law that outlines how the trust should be managed. For example, we instruct the trustee to select a reputable financial company upon a death of a person and create an annuity. Most annuities are flexible and payouts of principal or income can be arranged as often as you desire or in a restrictive manner (25 years old, 35 years old, 45 years old).
Estate Planning and Divorce
The second concern for divorcing spouses or parents of divorcing spouses is inheritance. An inheritance such as a gift through a will is subject to alimony and a divorcing spouses. A will cannot have a spendthrift provision. A spendthrift provision is a provision, which protects a divorcing spouse's inheritance from claims advanced by their ex-spouses. In contrasts, a living trusts or otherwise known as a "revocable living trust" cannot be touched by a divorcing spouse. A living trust has a unique feature called a spendthrift provision. This spendthrift provision states clearly that an inheritance is not subject to alimony or divorcing spouse's claims. Spendthrift provisions are routinely upheld.
In conclusion, any divorcing spouse should amend and update their estate plan. Sean Robertson is an tax attorney that concentrates in estate planning, estate and gift tax planning, asset protection, and probate law. Sean Robertson can be reached at (312) 498-6080 or (630) 364-2318 or RobertsonLawGroup@gmail.com.
Sean Robertson graduated from University of Illinois at Urbana-Champaign in 1997 and DePaul University College of Law in 2003. Sean Robertson has over six (6) years of legal experience representing husband and wives and divorcing spouses in their unique estate planning options.
Estate Planning and Divorce
Divorcing spouses should amend their estate planning their estate planning documents. This is important because your assets will otherwise, go directly to your ex-spouse. Most ex-spouses (deceased that is) would not like this. In most cases, guardians should be chosen in case you or your spouse are deceased. A key question is who should manage any inheritance that your minor children or young adult would receive. Typically, some divorcing spouses are hesitant to allow their ex-spouse to assume control over their children's inheritance. Some adults are good with money and some adults are poor at financial management. Unfortunately, many people falsely assume that an inheritance will go to their children as planned. In most cases, a multi-year pay out of an inheritance will unlikely make it to its' beneficiary. A way to prevent this is to set up a trust and have a trusted friend or family member assume management over the trust funds. A trust is simply a written agreement created under law that outlines how the trust should be managed. For example, we instruct the trustee to select a reputable financial company upon a death of a person and create an annuity. Most annuities are flexible and payouts of principal or income can be arranged as often as you desire or in a restrictive manner (25 years old, 35 years old, 45 years old).
Estate Planning and Divorce
The second concern for divorcing spouses or parents of divorcing spouses is inheritance. An inheritance such as a gift through a will is subject to alimony and a divorcing spouses. A will cannot have a spendthrift provision. A spendthrift provision is a provision, which protects a divorcing spouse's inheritance from claims advanced by their ex-spouses. In contrasts, a living trusts or otherwise known as a "revocable living trust" cannot be touched by a divorcing spouse. A living trust has a unique feature called a spendthrift provision. This spendthrift provision states clearly that an inheritance is not subject to alimony or divorcing spouse's claims. Spendthrift provisions are routinely upheld.
In conclusion, any divorcing spouse should amend and update their estate plan. Sean Robertson is an tax attorney that concentrates in estate planning, estate and gift tax planning, asset protection, and probate law. Sean Robertson can be reached at (312) 498-6080 or (630) 364-2318 or RobertsonLawGroup@gmail.com.
Sean Robertson graduated from University of Illinois at Urbana-Champaign in 1997 and DePaul University College of Law in 2003. Sean Robertson has over six (6) years of legal experience representing husband and wives and divorcing spouses in their unique estate planning options.
Monday, May 10, 2010
Family LLC and Liabilty Protection
A Family, LLC is an excellent asset protection vehicle in today's recession economy. I understand that we are hearing news of a better economy. Unfortunately, families, business owners, and real estate owners are facing an economy that is worsening.
Many are wondering how to resolve their credit issues and save themselves from bankruptcy. Unfortunately, many people do not want bankruptcy because they have worked hard to accumulate assets such as a personal residence, investment real estate, and certificate of deposits and liquid cash.
A Family, LLC is a business entity that is designed for two (2) purposes. The first purpose is asset protection. Asset protection is crucial because your assets are facing liability risks from unpaid mortgages, foreclosure(s), business creditors, and a variety of other liability concerns. A common question now is how do we protect our assets from liens and judgments. A family LLC combined with a personal land trust is a good way to protect your real estate from liens and judgments.
Often times, you can negotiate favorable settlements with your creditors if your assets are judgment proof. With a Family, LLC, a creditor has limited collection rights. Unlike a corporation, a Family, LLC cannot be foreclosed, which is important because your creditor has all the bargaining position. This forces you into settlements and financial distress. For many families, it also forces you into bankruptcy and even more severe times. If structured correctly, a creditor should not be able to penetrate your asset structure with a personal residence trust and Family LLC.
For more information, call Sean Robertson at (312) 498-6080 or (630) 364-2318.
Many are wondering how to resolve their credit issues and save themselves from bankruptcy. Unfortunately, many people do not want bankruptcy because they have worked hard to accumulate assets such as a personal residence, investment real estate, and certificate of deposits and liquid cash.
A Family, LLC is a business entity that is designed for two (2) purposes. The first purpose is asset protection. Asset protection is crucial because your assets are facing liability risks from unpaid mortgages, foreclosure(s), business creditors, and a variety of other liability concerns. A common question now is how do we protect our assets from liens and judgments. A family LLC combined with a personal land trust is a good way to protect your real estate from liens and judgments.
Often times, you can negotiate favorable settlements with your creditors if your assets are judgment proof. With a Family, LLC, a creditor has limited collection rights. Unlike a corporation, a Family, LLC cannot be foreclosed, which is important because your creditor has all the bargaining position. This forces you into settlements and financial distress. For many families, it also forces you into bankruptcy and even more severe times. If structured correctly, a creditor should not be able to penetrate your asset structure with a personal residence trust and Family LLC.
For more information, call Sean Robertson at (312) 498-6080 or (630) 364-2318.
Friday, May 7, 2010
Revocable Living Trusts and Privacy
Yesterday, a client of mine asked me whether a revocable living trust agreement (hereinafter referred to as "living trust agreement") must be recorded. The answer is "No" and I would recommend that a living trust agreement is not recorded. A revocable living trust or otherwise known as living trust (hereinafter "Living Trust") is a legal entity created under law, which authorizes an entity to be created that is distinct from its' creator. A living trust is revocable, may be altered, or amended. A living trust is similar to a will in some respects because it distributes your property upon your death or incapacity.
A living trust is a private document unlike a will. A will is public information and any and everybody may review it. A living trust is private and typically is kept in your safety deposit box. Privacy is important to eliminate fights because wills are fought against because an attorney can review the contents and destroy the will.
Sean Robertson, Esq.
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
RobertsonLawGroup@gmail.com
A living trust is a private document unlike a will. A will is public information and any and everybody may review it. A living trust is private and typically is kept in your safety deposit box. Privacy is important to eliminate fights because wills are fought against because an attorney can review the contents and destroy the will.
Sean Robertson, Esq.
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
RobertsonLawGroup@gmail.com
Wednesday, May 5, 2010
Successor Trustees and Succession Planning
This past week, a client asked an interesting question. I reviewed this other law firm's revocable living trust agreement and unfortunately, there was no provision for a second successor trustee. A successor trustee is a trustee position that begins after the grantor or the creator of the trust is deceased. For example, John creates a living trust and appoints himself as trustee. John dies and now the trust agreement informs us who is the successor trustee after his death or incapacity.
In this trust agreement, there is a successor trustee, but she is not doing her job. The next question is how do we remove her and who is the second successor trustee? In the trust agreement, there is no provision for a second successor trustee or language addressing the process for selecting a trustee when no trustee is available or appointed.
Under 760 ILCS 5/13, the Trusts and Trustees Act addresses the issue of vacancy of a successor trustee. This is what the statute says " (760 ILCS 5/13)
Sec. 13. Vacancy ‑ Successor Trustee. In the event of the death, resignation, refusal or inability to act of any trustee:
(1) the remaining trustee, if any, shall continue to act, with all the rights, powers and duties, of all of the trustees; or
(2) if there is no remaining trustee, a successor trustee may be appointed by a majority in interest of the beneficiaries then entitled to receive the income from the trust estate or, if the interests of the income beneficiaries are indefinite, by a majority in number of the beneficiaries then eligible to have the benefit of the income of the trust estate, by an instrument in writing delivered to the successor, who shall become a successor trustee upon written acceptance of the appointment, but no beneficiary who is appointed as a successor trustee shall have any discretion to determine the propriety or amount of any distribution of income or principal to himself or to any person to whom he is legally obligated.
Thus, 760 ILCS 5/13(2) says that a successor trustee may be appointed by a majority in interest of the beneficiaries to receive the income from the trust estate or by a majority of the beneficiaries. In my client's case, there are three beneficiaries who have a right to the inheritance or the right to live in the residence of the trust. Unfortunately, one of the beneficiaries is deceased and the other beneficiary cannot be located. Thus, there is no majority of beneficiaries because my client has one vote and his living brother has one vote, which equals fifty percent. Typically, the term majority means greater than fifty (50) percent.
In my client's case, there are several options, but I thought this was an interesting issue.
In this trust agreement, there is a successor trustee, but she is not doing her job. The next question is how do we remove her and who is the second successor trustee? In the trust agreement, there is no provision for a second successor trustee or language addressing the process for selecting a trustee when no trustee is available or appointed.
Under 760 ILCS 5/13, the Trusts and Trustees Act addresses the issue of vacancy of a successor trustee. This is what the statute says " (760 ILCS 5/13)
Sec. 13. Vacancy ‑ Successor Trustee. In the event of the death, resignation, refusal or inability to act of any trustee:
(1) the remaining trustee, if any, shall continue to act, with all the rights, powers and duties, of all of the trustees; or
(2) if there is no remaining trustee, a successor trustee may be appointed by a majority in interest of the beneficiaries then entitled to receive the income from the trust estate or, if the interests of the income beneficiaries are indefinite, by a majority in number of the beneficiaries then eligible to have the benefit of the income of the trust estate, by an instrument in writing delivered to the successor, who shall become a successor trustee upon written acceptance of the appointment, but no beneficiary who is appointed as a successor trustee shall have any discretion to determine the propriety or amount of any distribution of income or principal to himself or to any person to whom he is legally obligated.
Thus, 760 ILCS 5/13(2) says that a successor trustee may be appointed by a majority in interest of the beneficiaries to receive the income from the trust estate or by a majority of the beneficiaries. In my client's case, there are three beneficiaries who have a right to the inheritance or the right to live in the residence of the trust. Unfortunately, one of the beneficiaries is deceased and the other beneficiary cannot be located. Thus, there is no majority of beneficiaries because my client has one vote and his living brother has one vote, which equals fifty percent. Typically, the term majority means greater than fifty (50) percent.
In my client's case, there are several options, but I thought this was an interesting issue.
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