Articles

NAPERVILLE 630-780-1034

Facebook Twitter Google+ LinkedIn Youtube
Facebook Twitter Google+ LinkedIn Youtube
Search

Naperville Living Trust Attorney

Naperville Living Trust Attorney

Will and Trust Attorney Serving Naperville and Aurora, Illinois

A Living Trust is otherwise named a “Revocable Living Trust” or a “Family Trust,” among other names. A Living Trust is a legal document that describes who shall receive your inheritance and property upon your death. Unlike a Will, a Living Trust can also be used to plan for an incapacity. Planning for an incapacity for older adults is similar to retirement planning. Most adults are more concerned about their own lifestyle and standard of living than who shall receive their property or assets upon a death. A Living Trust is called “Living” because it is designed for life and death, unlike a Last Will. A Last Will and Testament is a document for distributing property at death and cannot plan for an incapacity.

Incapacity planning is important because it protects your assets and creates an emergency plan in case of unexpected healthcare issues. Such issues increase in likelihood the older a person becomes. An unplanned incapacity can result in financial chaos. In addition to a Living Trust, a Durable Power of Attorney for Property, otherwise known as a Financial Power of Attorney, is also important.

A Durable Power of Attorney for Property allows a person to appoint an agent to manage their financial needs when they lack the ability to make financial decisions. Most Financial Powers of Attorneys have a springing provision, which means that the agent assumes responsibility only if the creator of the power of attorney is unable to make financial decisions for themselves. Most agents are spouses that can act immediately upon an incapacity or cognitive diminishment issues such as dementia or a stroke.

Incapacity Planning in Aurora

Generally, a Durable Power of Attorney for Property and Living Trust work in combination with one another. A Living Trust appoints a Trustee, which is typically the Maker of the Trust. Upon an incapacity, the Successor Trustee or Contingent Trustee assumes responsibility for managing the Living Trust. Most Durable Powers of Attorney enable the agent to transfer assets and property to the Living Trust. The Living Trust is the mechanism for protecting one’s assets upon an incapacity.

A Successor Trustee serves as an intermediary between the Maker of the Trust, or “Trustor,” and the beneficiaries of the Trust. A Successor Trustee manages the assets that are titled in the Trust’s name for the Maker of the Trust and its’ beneficiaries under the terms of the Trust Agreement. The duties and responsibilities of the Successor Trustee may vary depending on the circumstances and wishes of the Trustor or Grantor. A Successor Trustee can be held personally liable to the Grantor or Trustor and the beneficiaries for failing to reasonably perform their duties. In Illinois, the duties of a trustee are outlined in the Trust Agreement and by the Trusts and Trustees Act, 760 ILCS 5.

Trust Agreements outline the powers of the Trustee or Successor Trustee, which often include the authority to:

  • Make Investments;
  • Purchase Investments;
  • Manage investment portfolios;
  • Register securities in the name of the Trust or their own name on behalf of the Trust;
  • Vote, in person or by proxy, on issues related securities held by the Trust;
  • Repair, improve, or lease property or real estate;
  • Sell property such as real estate;
  • Refinance real estate, borrow funds, or mortgage or pledge any property;
  • Settle and compromise lawsuits including any estate claims or litigation issues;
  • Distribute income or assets; and
  • Employ agents such as attorneys and accountants.

The Trust Agreement should have a disability provision in case the Successor Trustee also develops an incapacity. A Living Trust can be revoked, amended, or changed for as long as the Grantor is alive and mentally competent to do so. Trustor or Grantor may revoke or amend a Trust in whole or in parts.

Naperville Attorney for Living Trusts

A Living Trust is governed by the Trust Agreement, otherwise known as the Declaration of Trust, which is the outline of the Maker’s wishes upon an incapacity or death. Generally, the Trust Agreement highlights how the Trustor’s property should be distributed upon the Maker’s death. In most cases, a Trustor or Grantor’s spouse will be the primary beneficiary of the Trustor’s estate. A well-drafted Living Trust should also explain how property should be distributed in case the primary beneficiary is deceased or disabled.

Trust Agreements created by Sean Robertson and Robertson Legal Group automatically give the primary beneficiary the ability to set up a Supplemental Needs Trust to protect their inheritance from creditors or the government in case of a disability. Creation of a Supplemental Benefits Trust for disabled beneficiaries is important to protect and qualify for Supplemental Security Income, Medicaid, and other “need-based” government programs. The Supplemental Needs Trust protects the beneficiary’s government benefits while providing funds for expenses not covered by government programs.

There are several benefits of a Living Trust in comparison to a Last Will and Testament. First, a Living Trust is a private document and does not have to be filed at the local courthouse like a Last Will and Testament. Second, a Living Trust does not have to be administered through Probate court, which requires a Probate attorney and an often-lengthy process. Third, a Living Trust is easily administered and generally creates few headaches, whereas a Will is more likely to involve a Will Contest because court proceedings invite estate litigation. With a Will, the heirs and legatees (beneficiaries of the Will) must be notified of the court proceedings. A Living Trust does not require beneficiaries or heirs to be notified about any proceedings. Finally, a Living Trust can include a spendthrift provision, which protects the beneficiary’s inheritance from creditor’s claims and divorcing spouses.

Contact Our Office

Sean Robertson is an experienced estate planning attorney who is passionate about assisting people with their wealth management and estate planning legal needs. Contact our office by calling 630-780-1034 for a free consultation. Sean Robertson and Robertson Legal Group, LLC concentrate in the areas of Wills and Trusts, Living Trusts, Powers of Attorney for Property and Health Care, and asset protection in and around Naperville and Aurora, Illinois.

Estate Planning for Second Marriages?

Naperville Estate Planning Attorneys for Second Marriages and Blended Families

Estate planning for second marriages present unique challenges. After a divorce, it is important to change your beneficiary designation forms and amend your Last Wills and Testament and your Revocable Living Trusts documents. Sean Robertson and Robertson Legal Group, LLC concentrate in estate planning for second marriages and blended families. The concept of “family” is evolving in this country. The traditional family is a fallacy because families have combined together to create unique blends. For example, families consist of two and three marriages and children from different marriages with each parent having children from different marriages. The Merriam Webster Dictionary defines blended family as a “family that includes children of a previous marriage of one spouse or both”.

When I practiced family and divorce law, it was common to see divorced couples get re-married or establish non-traditional relationships with similarly minded persons. These unique family situations create complicated estate planning situations. One of the goals of an estate planning attorney is to minimize family conflicts. A natural family conflict is the distrust between a step parent and a step child or children. Many phone calls involving estate disputes occurred among blended families because the natural children of the deceased distrusted the stepparent especially involving money or real estate.

Frequently Asked Estate Planning Questions

Naperville, Aurora, and Wheaton Estate Planning and Family Trust Lawyers in DuPage County

Naperville Wills and Trust Lawyers. Experienced and Compassionate Estate Planning Lawyer to Assist You

Here are ten (10) frequently asked questions for estate planning law:

1. What is an Estate Plan?

An estate plan is a comprehensive plan involving wills and trusts law where a wills and trusts lawyer assists a couple, family, or elderly person with deciding how they want to distribute their assets upon a death. Furthermore, most estate plans involve financial powers of attorneys and healthcare powers of attorneys.

Does a Living Trust Provide Asset Protection Benefits?

Naperville Estate Planning and Wealth Management Law Firm

Sean Robertson and Robertson Legal Group, LLC concentrate in the areas of wills and trusts, asset protection, and wealth preservation law. Sean Robertson is an experienced asset protection and advanced wealth planning attorney that works closely with families and individuals with regards to setting up their legacies and Revocable Living Trust. Often, Sean Robertson hears people falsely assume that a Living Trust protects their assets from creditor claims.

A Revocable Living Trust is a legal strategy designed to distribute your assets and wealth upon your death or incapacity. The term “Living Trust” means that unlike a traditional will, your Living Trust is designed to provide protection in case of an incapacity or guardianship scenario. A Living Trust will have a Trust Agreement or otherwise known as a “Declaration of Trust”, which will outline who should inherit their wealth; who should be appointed as Trustee, Successor Trustee, and whether any type of gift taxation planning should occur. One of the benefits of a Living Trust is the spendthrift provision, which protects your beneficiaries from creditor concerns such as a divorcing spouse or creditor concern. A Living Trust is similar to an asset being owned by you because the court understands that a Living Trust can be revoked or amended back into your name unlike an Irrevocable Trust. An Irrevocable Trust is unamendable (with exceptions) and control is the key concern courts review when determining whether an asset is beyond the reach of a creditor.

Asset Purchase Agreements vs. Stock Purchase Agreements

Naperville and Wheaton Purchase and Sale of a Business Attorney

Sean Robertson concentrates his practice in the areas of business planning, asset protection, estate planning, and real estate law. Sean Robertson is unique in his skill set because he has a substantial taxation planning background, which is unique for most suburban business transaction lawyers. An Asset Purchase Agreement is where a business purchase the assets of another business. A Stock Purchase Agreement is where a business or person(s) purchase the stock ownership of a Corporation or an Limited Liability Corporation (or otherwise known as an “LLC”).

Depending on your specific circumstances and reasons, there are legitimate reasons to utilize a Stock Purchase Agreement versus an Asset Purchase Agreement. In a recent business transaction, one of the legitimate reasons to purchase an existing company is due to them employing important business licenses. A business license in some cases may be an invaluable tool especially in the healthcare and medical fields. Generally, a stock purchase agreement is a written agreement where a party is purchasing the assets and liabilities of a company. The drawback of a Stock Purchase Agreement is the assumption of liabilities. Potential liabilities are a major reason to employ an Asset Purchase Agreement versus a Stock Purchase Agreement unless there are legitimate reasons to deviate from this general rule.

Back to Top