Why Estate Planning For Seniors is Important?

Estate planning is a field of law that prepares wills, powers of attorney, and trusts for seniors upon their incapacity or death. Simply put, estate planning is making sure your legal affairs are in order if something serious happens to you. One of my client’s passed away within the past two (2) weeks and his family affairs are complex and a mess.
Seniors and people often have complex family situations, which make the inheritance of assets an interesting story. Furthermore, family members and friends state that their family or friends promised them an inheritance and often times, this promise or believed promise does not occur. Despite any oral or written promises, the only way to guarantee that your legal affairs are in order is to follow the proper laws.
In the area of estate planning, wills and living trusts and powers of attorney are the key documents, which distribute your assets upon a death or incapacity. At a minimum, every senior should have a will, power of attorney for property, and power of attorney for healthcare. A will is a written device, which explains your legal wishes and often times, is notarized and witnessed by at least two (2) impartial witnesses. A power of attorney is a document where a senior grants another person the power to make decisions in case of their incapacity. A power of attorney is effective for the duration of one’s life or only during a brief period of time. There are two (2) types of powers of attorney: property and healthcare.
There are critical differences between a will and a living trust. Often times, a living trust is called a “Revocable Living Trust” because it may be amended and it serves its’ purpose during your life. Unlike a will, a living trust is equipped to deal with your property while you are alive. A will is a document that distributes your property upon your death. A living trust is a powerful legal tool because it avoids the pain of a court proceeding called probate court. Probate court is a court that hears claims brought by family, friends, and creditors of a deceased person. A living trust is also a private document unlike a will, which is public information.
In conclusion, the topic of estate planning is a difficult but necessary topic. In most families, families are complex and have step parents, step children, disabled children, and many other complex situations that make senior’s estate planning more complex than most seniors realize.

Estate Planning for Married Couples

I just got down speaking with a married couple regarding estate planning. Typically, a typical estate planning meeting is broken into two parts. The first meeting is to gain basic information such as address, phone number, and who both spouses want to be their Trustee in case of an incapacity or death. Additionally, at the first meeting, we explain the differences between a will and a living trust. Generally, the major differences are a living trust avoids probate court, provides for a smooth transition upon a death or incapacity, and provides privacy protection. Privacy protection is important because often times, a married couple does not want their neighbors snooping into their business. Moreover, a living trust is a private document where as a will is a public document, which means that anybody can look up the contents of your will. A living trust is a private document because only the beneficiaries have a legal right to know the contents of your living trust. The first meeting also considers how your Living Trust should be set up. For example, today's married couple has a underage child that is ten (10) years old. The key question was who should be the guardian of their son in case both parent's decease. Who is an alternative guardian in case your first guardian is not available. Often times, couples put restrictions on their money such as that their child can obtain 1/3 of his inheritance after he completes his four year college degree and receive the rest of his inheritance at ages 30 (1/3), and 35 years old. Part of the estate planning attorney's role is guiding the married couple and giving them options. At the end of the first meeting, generally, we have the basic formula for the estate plan.

The purpose of the second visit is to explain the documents and sign the documents. Additionally, we talk about the importance of transferring one's assets into their living trust. In Illinois, a notary is required to witness the signing of a couple's living trust and supporting documents. At the end of the second meeting, we have a living trust that is signed and all of the major assets are titled in the living trust's name.

Sean Robertson is an estate planning and asset protection attorney. Sean Robertson can be reached at either (312) 498-6080 or (630) 364-2318.

Why hire an Estate Planning Attorney?

I received a phone call yesterday from another attorney and she had questions about her estate plan. Her father lives with her and she is wondering how she should structure her estate plan upon her death. She is afraid of having her life insurance money go directly to her father because it would make in ineligible for medicaid.

One of the important lessons of the attorney's phone call was that in a lot of estate planning scenarios drafting the documents is not the important part. The important part of the job is recognizing potential conflicts and problems that could occur with an estate plan. The benefit of an estate planning attorney is experience and knowledge. One of her other questions was about who should be the trustee of my father's special need's trust? In her case, she does not have anybody that she trusts to manage her trusts. I recommended another attorney that owns a trust company because of their experience and cost-effectiveness. Her siblings would be bad trustees because of their lack of legal knowledge and questionable financial skills. Often times, a family member trustee will fail in their position and it will costs the estate more money than just hiring a non-biased, professional trustee.

Sean Robertson is an estate planning and asset protection attorney. Sean Robertson can be reached at either (312) 498-6080 or (630) 364-2318.

Why Wills Are Worthless?

In my opinion, wills are worthless because most consumers do not know the differences between a will and a revocable living trust or otherwise known as a "Living Trust". A will is simply a document that declares a senior or elder's wishes upon their death. Thus, a will is a document that transfers their assets upon their death unlike a Living Trust. In contrast, a Living Trust is a document that disposes a senior or elder's assets upon their death, but a Living Trust also assists in the transfer of one's assets while they are living. Hence, the name "Living Trust" because a Living Trust is a death and life document unlike a will. Many seniors and elderly must have guardianship proceedings, which are a form of probate because they did not have a legal document such as a power of attorney or Living Trust to deal with an incapacity. Many seniors and the elderly have a will, but the will was worthless with their incapacity.

Second, a will must undergo probate court upon their death. Probate court is a court that hears inheritance claims and determines who should be the executor of your estate and who should inherit your assets. A probate judge does not have to follow your wishes and appoint your preferred executor. The probate judge has discretion, but in most cases, the probate judge follows the decedent's wishes.
A will must be probated is news to most seniors because they do not know that an attorney is required for probate, which costs a lot of money and is time consuming. Many seniors and elderly or their children have heard nightmare stories about probate. Probate can be a nightmare and a will invites family conflict because the probate process requires all family members including disinherited family members to obtain notice of the probate hearing. This leads to disgruntled family members filing will contests, which drag on the proceedings and increase the amount of legal fees and costs expended.

Unlike a will, a Living Trust avoids probate court because your real estate is titled in the Living Trust's name and no probate proceeding is required upon your death or incapacity. This is important because it saves family conflicts and thousands of dollars in attorney's fees and costs. More importantly, it saves off a major conflict for the relative that is intended to inherit your assets.

With a will or Living Trust, a power of attorney for property and healthcare are recommended. A power of attorney for property is a power in Illinois given to an agent that you appoint to pay your bills and make financial decisions when you are incapable of helping yourself. In contrasts, a power of attorney for healthcare is a legal document where you appoint a person to make healthcare decisions for yourself and give them instructions in how to make those decisions for you.

In conclusion, estate planning is critical and wills are worthless because they often do not accomplish a senior's objective, which is to give a loved one their assets with minimal hassle. As discussed, heirs of decedents have a big hassle in going through probate court in Illinois with a will or without a will.

Sean Robertson is an estate planning and asset protection attorney. Sean Robertson is managing Partner of Robertson Law Group, LLC. Robertson Law Group, LLC has offices in downtown Chicago and Naperville, Illinois. Robertson Law Group, LLC services Cook, Dupage, Kane, Kendall, and Will Counties. Sean Robertson can be reached at either (312) 498-6080 or (630) 364-2318.