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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.

Estate Planning and Retirement Planning

Naperville Retirement Planning Trust Lawyer and Naperville Living Trust Estate Planning Lawyer

Sean Robertson and Robertson Legal Group, LLC concentrate their practice in the areas of estate planning, living trust planning, and retirement planning for Illinois residents and business owners of Naperville, Geneva, Wheaton, Warrenville, Winfield, Plainfield, Aurora, Oswego, and surrounding western suburbs.

Retirement planning and estate planning are essential to ensure protection of your assets for your loved ones.

A Revocable Living Trust or otherwise known as a “Living Trust” is the main vehicle for transferring your assets at death to your loved ones. The type of assets that you can transfer to your Living Trust include homes, vehicles, personal property, bank accounts and other financial instruments. However, the Living Trust should not be named a beneficiary for your 401(k), IRA and other retirement plans because of unwarranted IRS tax implications for your heirs.

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.

DuPage County Probate Attorney

Naperville Probate Lawyers

Lawyer in Naperville and Aurora for the Appointment of an Executor

When a person dies in the state of Illinois, probate may be required if the person does not have an estate plan in place or beneficiaries designated properly. This often comes as a surprise to the decedent’s loved ones who may have assumed that the person’s Last Will and Testament would be sufficient for estate administration purposes. Probate and other estate administration concerns can be time-consuming, confusing, and expensive, and the necessary legal processes can add additional stress and grief for surviving family members.

Probate is the process through which the state of Illinois determines who will inherit a decedent’s assets and how any liabilities will be settled. Additionally, a probate court addresses issues such as who will be appointed as the executor or independent administrator of the estate.

Experienced Probate Lawyers Serving Kane County and Will County

Sean Robertson is a seasoned probate and estate administration attorney with more than 14 years of experience in the areas of estates, trusts, and probate. He also has substantial experience dealing with real estate, unlike many other probate and estate planning lawyers. Mr. Robertson works closely with a small title company and addresses probate and real estate concerns on a daily basis. In many cases, a probate attorney will believe that probate is necessary to address a real estate concern when there are other ways to address the issue.

If you have been nominated as the executor of your loved one’s estate and you would like guidance with your duties and responsibilities, Robertson Legal Group, LLC can assist you. With our guidance, the probate and estate administration processes can go smoothly for you and your family.

In general, the executor of an estate manages the assets held by the estate for the benefit of heirs and legatees. Our firm can assist you with:

  • Filing the Last Will and Testament within 30 days of the person’s death;
  • Filing small estate affidavits for smaller estates where probate may not be required;
  • Drafting quit claim deeds and affidavits of heirship to avoid probate and address real estate title concerns;
  • Opening a probate estate and an action for the appointment of an executor;
  • Filing petitions for letters of administration and a petition for a probate of a will;
  • Managing a decedent’s funeral and burial arrangements and expenses;
  • Settling any debts or liabilities on behalf of the decedent and estate;
  • Closing the probate estate; and
  • Selling real estate that is probated through the court system.

Alternatives to Probate

Sean Robertson and Robertson Legal Group, LLC understand that probate court is the last resort and that there are usually alternative solutions to probate court. Often, heirs are in agreement and probate court may be avoided simply by filing out an affidavit of heirship and a quit claim deed to transfer real estate to the appropriate party or parties. Ownership of real estate is a big reason why people come to a probate and estate planning attorney. We have helped many clients who went to other probate attorneys and were told that the probate process was necessary when it was not.

Unfortunately, most probate attorneys are not skilled in real estate law. Sean Robertson and Robertson Legal Group, LLC are different because we do a great deal of work with a small title company, as well as major banks and mortgage lenders such as:

  • NuMark Credit Union;
  • Busey Bank;
  • Compass Mortgage;
  • Neighborhood Loans, Inc.;
  • United Wholesale Mortgage;
  • Loan Depot, LLC;
  • Cross Country Mortgage;
  • Flagstar Bank;
  • Nations Lending Corporation; and
  • Many others.

We help clients of such institutions who are looking to refinance or sell their properties when they are facing legal title issues.   

Affidavits of Heirship Attorney in Aurora and Wheaton

What is an Affidavit of Heirship? An affidavit of heirship can be used in two ways. First, an Affidavit of Heirship may be used in Illinois probate court matters to properly inform the court regarding the appropriate heirs of a decedent. Second, an affidavit of heirship is used to clean up title issues and explain who the appropriate heirs of an estate are. Simply put, an affidavit of heirship is used to designate the heirs of a deceased person. Obituaries, birth certificates, death certificates, and many other documents are generally used to prove heirship.

If the surviving loved ones are generally cooperative, an affidavit of heirship may provide a suitable alternative to probate court. In many cases, heirs do not want to incur the expenses and time investment of probate proceedings, and an affidavit of heirship will resolve the issue.

Small Estate Affidavits

What is a Small Estate Affidavit? Illinois allows small estates—defined as estates with less than $100,000 in personal property—to forgo the formal probate process. A small estate affidavit is an alternative to probate court. A small estate affidavit is a legal document that provides information about a decedent’s heirs and loved ones and is used to access bank accounts, life insurance proceeds, and other assets that cannot be transferred without a small estate affidavit.

Sean Robertson and Robertson Legal Group, LLC will assist you by providing an interview form to gather the necessary financial and personal information about the heirs. Then, we complete the small estate affidavit for you to sign and notarize. Once this is complete, you should have access to the decedent’s accounts and other applicable assets.

Call 630-780-1034 Today

Sean Robertson and the team of professionals at Robertson Legal Group, LLC can assist you with every aspect of the probate and estate administration processes. We are skilled, thorough, and caring, as well as timely and responsive. Contact our office for a free consultation by calling 630-780-1034 today.

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.

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