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Living Trusts vs. Wills

Naperville and Aurora Living Trust and Estate Planning Attorneys

Most often, people assume that a Last Will and Testament or otherwise known as a “Will” is the best estate planning strategy for them. In this article, we will compare Living Trusts versus Wills.

Last Wills and Testaments: Benefits

There are three (3) major benefits of a Last Will and Testament (hereinafter referred to as an “Will”). The first benefit is Will is it passes a person’s assets upon their death. Generally, a Will distributes a person’s assets upon their death. A Will is important because if a person has no plan and there is no designated benefit, then the State of Illinois may determine who shall inherit your assets.

What is Intestate Succession and Probate Court?

What is Intestate in Naperville, Illinois?

Intestate succession is the probate court process to determine who is the rightful heir of a person’s estate that did not have a Last Will in Illinois. For example, intestate succession is when a person’s dies without a Last Will (or otherwise known as a “Will”). Intestate succession is the Illinois Probate Law which applies to a decedent’s estate who passed away without a written Will.

In Illinois, the Probate Act of 1978 dictates the descent and distribution regarding intestate succession upon an Illinois resident’s death without a Will. See 755 ILCS 5/2.1. Probate is not required of every decedent’s estate where a person dies in Illinois. Most assets are distributed pursuant to a contract such as through a land trust agreement, a bank or checking account agreement, and/or a life insurance contract. Essentially, most assets designate a primary and/or contingent beneficiary upon a death. A unique circumstance occurs when a person’s primary and/or contingency beneficiary is deceased, disabled, and/or minor children. Probate is required when a person fails to write a Last Will and Testament or provide a Revocable Living Trust. Probate is the court process where a Judge and Illinois Probate Law determines who is a qualified executor and who is a rightful heir of a deceased person.

Special Needs Planning Attorney in North Naperville

Naperville Special Needs Planning Lawyer

DuPage County Lawyer for Supplemental Needs Trusts

Estate planning for families with a special needs child or adult is a difficult but necessary task. In many cases, government programs and public assistance are crucial for disabled children and adults. Sean Robertson is the Principal Attorney at Robertson Legal Group, LLC, which concentrates in estate planning, special needs estate planning, asset protection, and guardianship planning for disabled adults and family members.

A Relevant Case Study

Recently, our family was faced with a situation in which an inheritance to a disabled adult became big issue. For the sake of confidentiality, we will call the disabled adult “Jackie.”

When Jackie’s sister died, Jackie received an inheritance through an individual retirement account (IRA) from her sister. The attorney who helped set up the sister’s estate plan was an older lawyer who did not work with estate planning documents very often. Unfortunately, the attorney did not establish a Special Needs Trust or another specialized instrument in such a way that fully protected Jackie’s eligibility for government benefits.

Our family is still waiting to see whether Jackie will be ineligible for government benefits until she spends down the assets she received in her name as well as those received by her Trust. The primary issue is that Medicaid and Social Security may consider the Trust’s assets as available to Jackie, which could compromise her eligibility government benefits.

Naperville Real Estate Deed and Real Estate Transfer Attorney: Naperville & Aurora Illinois Quit Claim Deed Attorney

Value of a Real Estate Attorney Preparing Your Real Estate Deed

The most common mistake when transferring a real estate title to another party is using a non-real estate attorney. Most people assume that any attorney can successfully prepare a Quit Claim Deed. This is a big mistake as it is a major cause relating to real estate title issues, which are often found when a party wants to sell their real estate. One of the job duties of the seller’s real estate attorney is to clean up any real estate title issues that may exist. This is a difficult task in some instances because heirs may have limited knowledge about their family tree. A qualified real estate attorney is the most appropriate person to prepare a real estate deed versus an estate planning attorney.

The second mistake is title issues are created because people prepare their own real estate deeds. About two (2) weeks ago, I had a client, Lisa, that asked me to prepare a Quit Claim Deed. I listed her name on the Quit Claim deed as it was written on her original deed. When I sent it to her for client review, she had changed the deed to her new name. She did not tell me she did this and I did not initially notice that she modified the Quit Claim Deed.

Frequently Asked Questions About Estate Planning

Naperville Estate Planning Attorney

Naperville Estate Planning and Trusts Attorney

Q. What Happens When You Die With No Estate Plan?

A. Intestate succession is the process of deciding who is the rightful heir or owner of property upon a death when a person does not have a wills. The Probate Act of 1975 (755 ILCS 5) dictates who shall inherit a deceased person’s assets upon a death in Illinois. See 755 ILCS 5. Simply put, a probate estate is an estate where there is no designated beneficiary for a given asset. Several such assets may exist in a person’s name such as a bank account and life insurance policies. Generally, bank accounts and life insurance policies will have contracts allowing a person too designate who they want to inherit their property upon their death. Unfortunately, a deceased person, also known as a “decedent” may have failed to update their financial documents upon a prior to their death. Intestate succession occurs when a person’s has no estate plan or the original plan fails for some reason.

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