It is important for everyone to have a last will and testament. A will allows you to determine exactly how your assets are distributed to loved ones after you pass away. Furthermore, having your wishes established in writing prevents family members and other loved ones from having to guess how you would want asset distribution handled.

Unfortunately, even the most detailed will cannot completely eliminate the chances of someone being upset regarding the will’s directives. Family members may feel that they were given an unfair share of your estate or otherwise disagree with the decisions you have made. They may contest the will in court, claiming that the will is not valid and should be thrown out.

If you are worried about people contesting your will after your death, one option you have in Illinois is a “no contest” clause.

Generally, leaving behind no will (intestacy) is a poor idea. Even if the people who ultimately inherit from you under intestacy law are the people you would have wanted to inherit from you, not having a will or a trust that controls your estate property is going to make things more difficult for them. It is not easy to pass an intestate estate through the probate courts. There is a high level of court supervision involved in this process, and this can slow things down significantly. It could take a year or more in some cases before your surviving family members can claim anything that belonged solely to you. Intestacy is meant to be the “default” estate plan. It is designed to match what the state thinks you probably would have wanted but is rife with imperfections. If you do not already have an estate plan, the time to speak to an attorney is now. 

Understanding Illinois Intestacy Code

Any portion of your estate that is subject to probate will be distributed - eventually - according to the laws of intestacy. These laws are meant to prioritize your closest living relatives, but cannot take into account the nuances of your family’s relationships and needs. 

Generally, if you leave behind a spouse and descendants, your spouse will inherit half your estate, and your descendants will split the other half. Usually, this means that half will be divided among your children. However, if one of your children predeceased you but left a grandchild, the grandchild will inherit the share that would have been their parents. If you are already confused, you are not alone. 

Estate plans specify how assets are handled after a person’s death or during a person’s incapacitation. This preparation provides a family with peace of mind and can help eliminate the burden of possible lengthy probate proceedings and costly legal fees. A will not only outlines how an estate is allocated but also assigns the executor. If the dependents are children, estate planning can determine guardianship.

Without a valid will, the person who died is considered to have died intestate, designating the state as the executor. The state then determines the recipients and handles the estate distribution according to state law. A detailed, legitimate will is essential if you wish your assets to be distributed a certain way. A will has ilmitations, so establishing trusts further protects one’s wishes. An estate planning attorney can explain the different types of trusts and help select the ones suitable to a client’s needs. 

Differences Between Trusts and Wills

Unlike a will, a trust takes effect immediately. In a trust, the trustor must transfer their property into the trusts, while a will only entails listing the estate and recipients. Transferring real estate property into a trust often necessitates retitling the property. 

During the estate planning process, many people will focus on the legacy they will leave behind and how they can use their assets to provide for their loved ones. However, an estate plan can also address how certain matters will be handled during a person’s lifetime, including how their assets will be managed and how their medical treatment will be handled as they get older. Making decisions about these issues can be especially important for elderly adults, and a person will want to make sure their needs will be met and their wishes will be followed, no matter what happens. One of the best ways of doing so is to create durable powers of attorney.

What Is a Durable Power of Attorney?

As a person gets older, or if they encounter a situation where they need assistance from others, they can create powers of attorney and name a person they trust who will be able to make certain decisions for them. When a person creates this type of legal agreement, they will name an “agent” who is authorized to make decisions on their behalf. The agent may be a family member or close friend, and the person may grant their agent broad authority to do what they believe is best, or they may provide specific instructions for how certain issues should be handled.

Powers of attorney come in two types. A power of attorney for health care will address medical and personal issues, and an agent may be given the authority to make decisions about the types of medical treatment that will or will not be provided in certain situations, as well as whether the person will be admitted to a hospital, mental health facility, or nursing home. A power of attorney for property or finances will address issues related to a person’s money and assets, and an agent may be given authority to manage the person’s finances, pay expenses, apply for benefits, conduct business transactions, or make investment decisions.

If you are considering meeting with an estate planning attorney for the first time, you might have some questions about what to expect during this appointment. During this first appointment, your attorney will ask a lot of questions meant to get to know you and what your goals are. You will go over what types of property you own, who you may want to leave property to, and perhaps some medical decision-making issues. You may not have all the answers when you first arrive at your new attorney’s office, and that is perfectly fine - your attorney is here to guide you. 

What Questions Will My Attorney Ask? 

There are a few areas of your life your attorney is going to ask about, usually starting with your property and family. Some of these questions may be uncomfortable to answer, but remember - this meeting is completely confidential. Your attorney cannot tell anyone else what you discuss in this meeting without your permission. It is important that you are completely open and honest. Here are some things your estate planning attorney is likely to ask about: 

• Your Property - Your attorney will help you take a broad inventory of what you own. He or she will ask about three main categories: your financial property, your personal property, and your real estate property. You may want to bring a list of any significant personal property, such as jewelry or family heirlooms. 
• Your Family - Your lawyer will need to know about the people who would naturally inherit your property if you did not have an estate plan. You will be asked about any biological children you may have. If you have stepchildren, or perhaps a significant other you are not legally married to but treat as a spouse, you will need to tell your lawyer about them.
• Your Intended Beneficiaries - These may include family members, friends, charities, or others. It is largely up to you. If there is a close relative you specifically want to be excluded from your estate plan, you should inform your attorney.
• Your Healthcare Wishes - Estate planning includes the sometimes difficult topic of what your wishes would be should you become incapable of caring for yourself and making decisions later in life. Who would you want to make medical decisions for you? Who would you trust to manage your finances? What kind of care would you want if you were terminally ill? 
• Your Previous Estate Planning - Your attorney will need to know if you have ever done any type of estate planning before, such as by drafting a will, putting a “transfer on death” note on your vehicle, or making a healthcare power of attorney.

Contact a Kendall County Estate Planning Attorney Today

When you are ready to begin planning your estate, Loire Krajniak Law, LLC is ready to help. With more than ten years of legal experience, Oswego estate planning lawyer Reese Krajniak is prepared to address all your estate planning needs. Call 630-448-2406 today to schedule a free and confidential consultation.