Last year, a Gallup survey found that half of all Americans do not have a Will or estate plan. That means half of America’s families would find themselves dealing with the stress of estate issues compounded by the overwhelming grief of losing a loved one. They might be trying to sort out guardianship of children, dividing money and property fairly, dealing with heirs who might occupy property belonging to the decedent.
Of course, you cannot just divide things up the way they think loved one would have wanted. Not only can failing to make a plan cause major divides in family relationships, it can cost a lot more time and money in the long run. People have a lot of excuses for putting off the inevitable; maybe it’s fear of talking about death in a family, or that they don’t have a lot of money, maybe they’re afraid things might change in the future and they’ll change their mind, or that it costs too much money to put together a proper estate plan. If you die in Illinois without a will, then the State of Illinois will write one for you: It is part of the Probate Act of the State of Illinois and is known as the intestacy statutes. Failing to plan ensures that the court will rule on the disposition of your property. It also might end up deciding who gets your children. Further, there have been some memorable battles over who gets to be named Administrator of your estate because you did not name an Executor by doing a Will.
By the way, the online Form Wills are coming home to roost. Those who used such forms are starting to die off and many of the Wills are being thrown out for failure to have them accurately executed and witnessed..
For married couples and especially blended families, this planning requires some sensitive and honest discussion. If you don’t know how to start, you can use a friend or a celebrity as an example saying, “I saw them go through this and I don’t want this to happen to our family…” Then be willing to ask the questions: “ Who do you want as a beneficiary? “ (No will? The court determines who are your legal heirs and that has resulted in litigation, sometimes lasting years.) Then go more in depth, depending on your legatees’ circumstances: How do you want to split the money? Maybe you have a high earning older child and a minor child who hasn’t gone to college or a special needs family member, so dividing the assets fairly might not mean equally. If there are children in a marriage that are “his, hers, and theirs”, who will be their guardian? Will they all stay together? If a battle of dueling grandparents takes place, the children might be placed into foster care until the issues are decided. Already traumatized by the death of their parents, do you really want your children to be uncertain about what you had planned for them?
Over 90% of the Wills which I have done where guardians for minor children are named, it is not either set of grandparents. It will be a sibling or close friends.
Being able to discuss these questions in depth with your spouse and asking whether the people you have in mind are willing to act as guardians is crucial when making a comprehensive estate plan. In the right circumstances, taking the time to explain to heirs what they might be receiving (or not receiving) or to children, who their guardian would be if both parents passed, is definitely a step in the right direction. If you are single, there are still many important questions to consider, especially if you want to give to people or charities outside of your immediate family.
With many couples, usually one person takes the lead with the finances and the other person is less informed. It is important that first, you prepare a simple list (to include the name and identifying number, if possible) of all your debts and assets, to include all bank accounts, real property, valuable items like artwork, royalties, vehicles, retirement accounts, life insurance, and any debt you may have. As a single person, it is also important to have this list not only as a good financial habit but to make it easier on your family if something were to happen to you.
Next, you need to determine which assets “pass outside the Will,” which is typically any assets that have a named beneficiary such as life insurance, or a 401k or other retirement plan. Make sure the latter are updated and do not have a former spouse listed, for example. Also, be sure to update information concerning property held “jointly with the right of survivorship” like possibly a deed to a house or even some bank accounts.
Next, you should hire a qualified attorney to help you decide what legal tools are best to distribute your property as you wish and possibly avoid taxes and or probate. Included with your Will, trust, or estate plan should be a healthcare power of attorney, medical directive, and also a durable power of attorney for finances. This ensures that your family can take care of your affairs in the event you are incapacitated.
Working with an experienced attorney and putting these important documents together will not only save your family time and money, it will save them the heartache of having to deal with countless legal affairs while mourning their loss. It also ensures that your estate is dealt with in a manner that is suitable to your liking even after you’re gone.
Finally, a Will always saves money for your estate. In it, you can name an Executor who does not have to post a Surety Bond which can cost thousands of dollars, and that person can act independently from the court on most things saving considerable attorneys’ fees.
The people who make an estate plan probably live longer than those who don’t: they have removed a large stressor from their daily load. I have Wills in my office executed in the early years of my practice and I am now 68.
Please consider it. It can make a difference in how you are remembered. My wife got a note from a friend and she is so grateful that her husband set up everything to make her life as painless as possible. I’ve certainly heard many a grumble about how a relative left a mess for them to clean up. What will your legacy be?
The Law Offices of David Blocher is a specialty law firm serving Chicago, IL and the surrounding areas specializing in elder law, probate administration, and estate planning services. Our attorneys take a keen interest in each case and offer personalized and attentive services to every client. If you need legal assistance in any of these areas, please feel free to contact us at (312) 257-3950 or visit our website at http://www.blocher-law.com.