I'm Buying a House. Should I Hire an Attorney?

YES. Thanks for reading...

In all honesty, I get this question a lot, in some form or another. Although I believe the answer is an emphatic "yes," there are many reasons I believe this.

For most people, the purchase of a home is the largest and most important transaction they will make in their lives. This is not running to Walmart for a couple household items. We are talking about spending thousands, if not hundreds of thousands, of dollars. We are talking about making obligations that could last for as long as 30 years. Seems to me that someone making a purchase of this caliber would want to assure that it was done properly.

Since everyone loves a good list, here are seven reasons why hiring an attorney to assist with your real estate purchase is a good idea: 

1. Attorneys understand contracts.

This is what we do, folks. We read, we comprehend, we explain the ramifications. Most real estate agents in Illinois utilize a fill-in-the blank form contract. Every sale is unique, and as you might suspect, a form does not always fit every circumstance. Attorneys are uniquely equipped to draft and tailor a contract to fit the needs of the transaction.
 
2. Attorneys understand title issues.

Any real estate purchase should involve title insurance. When a title company issues a title commitment to insure the title, the commitment will outline any issues, or clouds, on the title. These items may need to be resolved, and attorneys are equipped to resolve most of those issues.

3. Attorneys have ONLY your best interest in mind.

Illinois allows real estate agents and brokers to act as dual agents. If someone is acting as a dual agent, that means they represent both parties to the transaction. The rules of attorney ethics dictate that we are only allowed to represent one side of a transaction. That means the attorney only has the client's best interests in mind and works diligently to protect those interests.

4. Attorneys are not paid based on a successful transaction.

Most real estate agents are paid based on a commission, which is a percentage of the purchase price.  If the transaction does not close, the agents do not get paid. Attorneys typically bill based on an hourly rate or a flat fee. Since the attorney's fee is not based on the transaction closing, attorneys are uniquely able to advise against consummating a transaction when it is not in client's best interest.

5. Attorneys understand and are familiar with the process.

Attorneys have done this before. Most people do not routinely buy real estate. For that reason alone, they usually have no reason to be familiar with the process. For better or worse, all counties in Illinois are unique and have their own quirks. An attorney can help Buyers smoothly navigate potential pitfalls they might face during a transaction.

6.  Attorneys can save you time and money.

For many of the reasons I have already listed, attorneys help a transaction to go smoothly. The more smoothly the transaction goes, the less time the Buyer has to spend on it. Plainly stated, time is money.

7.  Attorneys can save you headache.

Whether it's contract negotiations, issues with title to the real estate, mortgage issues, issues with the title company, easement issues, home inspection issues, or myriad other items, the attorney can make sure the transaction closes cleanly and that the Buyer will not be haunted with unresolved issues after the closing. Buyers certainly do not want to have to deal with outstanding issues after the transaction has closed, especially if such issues involve litigation. Litigation is expensive and time consuming.  (Refer to #6 above.)

I have never represented a client who regretted hiring our firm to assist with their purchase of real estate. I am somewhat biased, but I believe hiring an attorney to guide a Buyer through the process is always a wise decision. 

Evelyn Bates

Grandmom would have been 90 years old today.  In honor of her birthday and her life, I would like to share the eulogy that I was honored to present at her funeral.  Rest easy Grandmom, we miss you every day.

Good morning everyone and thank you for coming.  If you do not know, my name is Blinn and Evelyn was my Grandmom.  Although it’s impossible to encapsulate the life of someone so very special in a few short minutes, I’m going try my very best.

In addition to being known as Evelyn and Grandmom, she was known as Mom, Ev Baby, and most recently Grammy.  

As far back as I can remember Grandmom was the most joyous, grateful, and humble person I have ever met.  She loved her family dearly.  There was never a time that her face did not light up with delight when she saw us.  And if you thought her grandchildren were special, you should have seen the joy her GREAT grandchildren brought her. 

She often reminded me that the great-grandchildren were some of the most perfect things she had ever seen.  I promptly reminded her of my presence, to which she usually responded “OH BLINN.”

She genuinely and truly cared about every person she ever came into contact with.  Her positivity and joy for living were unending.  This was her “bubble” as I sometimes called it.  Cynicism was simply not in her nature.

She loved her friends, and although it doesn’t take much, her social calendar was more booked than mine, by far.  The past few years, it was her great joy to spend time going to dinner with friends, or visiting them, or just chatting.  We sometimes had to call her a week in advance to get on her calendar for dinner.

She always had a kind word for someone’s attire, even if it was nothing special, it was “a great color on you.”  Being in her presence always made you feel better about yourself.  She just had that effect on people.

Her plants and her animals were like children to her.  She was very concerned about her plants when she fell recently.  As we sat in the O.R., surrounded by nurses, waiting on the orthopedic surgeon, I shared with her that Uncle Soup, in his typical heroic fashion, had volunteered he and Aunt Jean to water while Grandmom recovered.  “What a relief” she said,  “I have been just worried sick about my plants.”

She overcame a lot of obstacles during her lifetime, and always came out positive on the other side.  She was born right before the Great Depression, suffered the loss of a child, the loss of my Grandfather after decades of marriage, lived through never before seen technological advances, the list goes on.  She would always adapt, she never complained, and she would move on. 

Maybe she forgot to hit the send button on an email from time to time or forgot her password. I blame not taking those vitamins she misplaced when we were younger that were supposed to help bolster her memory. She didn’t like getting beaten by her grand-kids at Words with Friends because they “made up words.”  She never quite figured out that cell phone, but she did pretty darn well.  And she always did it with a smile and a kind word. 

She had some bumps and bruises along the way, and I joked with her that she was going to be bionic before it was all said and done.  But, she was strong.

If Grandmom had any weakness at all, it was her sweet tooth.  She loved all things chocolate, and she wanted to make sure everyone else had plenty too.  One of my favorites was a chocolate cake with chocolate frosting, and raspberry jelly in the middle.  My mouth is starting to water just thinking about it.  

Although Grammy was always a stickler for manners and proper etiquette, she did profess that there was one exception, and that was that you were allowed to wipe chocolate off of your plate with your finger and lick it.  That will always be an exception at my dinner table.   

She was a deeply religious woman, and her empathy for others was unmatched.  The cynic I can sometimes be, she would often get a sigh or an eye roll from me when she was being overly empathetic.  But, Grammy was a true servant of the Lord, and she set the example for all of us. 

I am so very grateful that I got to enjoy the time I had with her on this Earth and that 

my children were privileged to meet such an incredible person.  Although she will 

certainly be missed, she will be remembered fondly until we see her again.  God 

Bless. 

You've Been Served - Now What?

For most individuals, being served with a Summons is not an everyday occurrence. Unless you work within the court system or at a law firm, legal documents probably arouse some level of trepidation when someone brings them to your door. Hopefully a few basic "Dos" and "Don'ts" will help to ease that fear.  

DON'T ignore the Summons. The worst possible course of action after being served would be to ignore the issue. Even if you are 100% in the right, the problem will not go away if you ignore it. In fact, it will likely get exponentially worse.   

DO read everything in the Summons and Complaint. You should review what the Summons and Complaint have to say. The Complaint outlines the allegations against you.  Although the technicalities and legalities within the Complaint may be confusing, that document will give you an overview of why you are involved in the lawsuit.   

DON'T skip court dates. If the Summons lists a date when you are to appear in Court, make sure you are there. This goes along with the suggestion that you not ignore the Summons. There is never anything good that comes from missing scheduled Court hearings. There could be default judgments entered against you, which might eventually affect your credit. Missing some Court dates may result in the issuance of a body attachment for your arrest. Court dates are not something to take lightly.  

DO calendar dates. If there are dates listed in the Summons, make sure you set a reminder for those dates. I keep an electronic calendar, and Court dates get calendared immediately when they are received. Judges do not like when anyone fails to appear, but that is especially true for lawyers.  

DON'T immediately contact opposing counsel without legal representation. The attorney's office that filed the Complaint does NOT represent you. They represent their client and their client's interests. They have no obligation to explain the legal ramifications of your actions to you, and anything you tell them may be used against you later in the proceeding.

DO contact your insurance company. If you have been sued, you should notify your insurance company about the Complaint. This is not to say that you will necessarily be covered, but prompt notification is usually essential to make sure you are covered if the claim against you is something you are insured against.   

DON'T talk about the lawsuit with other people or online. It may be tempting to fight the Complaint in the court of public opinion. Don't do it. Anything you say to others or publish online may be used against you later in the proceeding. Especially early on in the proceeding, you should only discuss the lawsuit with your insurance company and your attorney.

DO contact a reputable attorney in your area. This is the best advice I can give. An attorney is going to be familiar with the legal process in your county, and will be able to give you guidance on how to proceed. Call and make an appointment to see a lawyer right away. If it is not the type of case their office handles, they would be in a great position to give you a recommendation on who to call. Make sure to give the attorney plenty of time to handle the issue. Tell his office of any upcoming deadlines or court dates when you call to schedule an appointment.

If you follow this advice, you will be well on your way to resolving your issue. Being sued is typically unfamiliar, and initially it can be scary. You may not be able to make the issue go away overnight, but you will sleep much better knowing that you have competent legal representation protecting your interests.

LegalZoom Legal Plans

I read, with interest, an article that was recently sent to me by LegalZoom advocating for consumers to hire attorneys. I'm not sure why I receive emails from LegalZoom, but I apparently do.  I guess it's always good to keep up with what the (purported) competition is doing.

For anyone unfamiliar with LegalZoom, they are a legal tech company that was started in the early 2000s.  Their business model started out as providing consumers with low-cost, online, do-it-yourself legal solutions.  I will admit, they seem have been pretty successful over the years generating revenue.  Your guess is as good as mine on the eventual outcomes of their products.   

After reading the article, you may assume that LegalZoom finally came to their senses and realized that every legal matter does not fit a cookie-cutter, one-size-fits-all, model.  Or, if a savvy reader scans all the way to the end of the article, they might see that LegalZoom is marketing their contract legal plans. 

Interested in what the legal plan had to offer, I went ahead and reviewed the Legal Plan Contract.  For the "best value" of $9.99 a month, the LegalZoom legal plan offers consumers the following:

1.  A 30-minute phone call with a legal plan attorney to discuss a "new" legal matter, which does not involve business matters (there is a different plan for that) or tax matters.  And, if the plan attorney deems it appropriate, a letter that does not exceed 2 pages.

2.  Review of a legal document up to 10 pages for a "new" matter and a call from a plan attorney about the same.

3.  A legal checkup once a year including a 1 hour phone call to discuss the client's "legal portfolio."

4.  A 25% discount on the plan attorney's fees, as reported to LegalZoom, if hired by the client for additional work.

There were several other gems in the Contract, but, with the exception of the auto-renewal language, these were the meat of the agreement.  So, what does a consumer's $120 per year actually get them?  Not much. 

Let's run through a scenario:  When, and if, you actually get on the line with a live attorney, your legal issue is not going to be resolved in a 30-minute phone call.  Even if the contract you have is less than 10 pages (the Legal Plan Contract itself was 6), there will be language in that contract the plan attorney does not like.  He will tell you that he suggests you hire him to help you navigate your issue.  Knowing that his rate would be discounted 25%, he probably reported his rate to LegalZoom as being 25% higher.   

In all likelihood, the plan attorney is not going to be located in the same place you live and will be in some dream location, like Chicago.  Now you are dealing with a non-resident attorney.  Going to their office to meet with them is going to be burdensome, and they will probably charge you to travel to you, if it becomes necessary.  They are not familiar with the community you live in, nor are they familiar with the people who live and work there.

Here's a better suggestion:  If you have a legal matter that needs attention, you are always best served to consult an attorney.  Not sometimes, not only for things that are "complicated," not for things you cannot accomplish on your own.  ALWAYS.  So call someone local and go see them.  Ask friends and family members who they know and trust to handle your issue.  Unless you are delving into the wonderful world of litigation, anybody worth their salt should be able to give you an estimate of what the overall cost of the legal matter will be. 

Sometimes, we just don't want to do things like go to the doctor or see a lawyer.  If you are anything like me, you have probably done a Google search of your symptoms when you aren't feeling well.  After a short WebMD search, and convincing myself that I most likely have sarcoidosis, I usually go see the doctor.  And, thus far, when I leave his office, it is usually with a prescription and a prediction that I will be fine in a few days.   

What Happens When You Die - Prologue

As a follow-up to the recent blog series about the estate administration process (read PART 1), I felt it was worth mentioning that there is a summary type administration process available in Illinois.

If the assets of a decedent are less than $100,000, there is a process that may be utilized called a "small estate affidavit" process. There are many times where a deceased may pass away and only own a vehicle or a nominal bank account in their own name. If that person has no creditors, the law recognizes that administering the decedent's estate may be cost prohibitive.

The Small Estate Affidavit can be presented to a financial institution or the Secretary of State and dictate where the assets of the deceased should be transferred. In some situations, this process is a very cost-efficient way to finalize the affairs of the estate. As with any legal proceeding, a competent attorney can give the best advice about whether or not the scenario lends itself to utilizing this process.

If I can make any broad generalizations about administering a Decedent's estate, it would be that it is always easier if the Deceased had written a Will. This single document usually makes things go much smoother for everyone.

If there is ever a legal topic that you would be interested in hearing about, I always welcome input. Thanks for reading. 

What Happens When You Die Part 6

Previously, in PART 5, we discussed claims against the estate. After the claim period in the estate has run, the Personal Representative is then in a position to pay any outstanding debts and distribute any remaining assets. 

If sufficient assets exist in the estate to pay all the claimants, those claims will be paid first. Once a claimant is paid, they will file a Release of their claim with the Personal Representative or the Court, depending upon how the claim was filed.  

Thereafter, the remaining assets will be distributed to the beneficiaries/heirs. The Personal Representative has an obligation to account to the beneficiaries/heirs of the estate. This can be accomplished in one of two ways.  

The Personal Representative can send an Accounting and Proposed Distribution to all of the beneficiaries/heirs and ask that they sign off on that proposal. The Accounting will outline what assets have come into the control of the Personal Representative, what claims and expenses were paid, and how he or she is proposing to distribute what is left. If the beneficiaries/heirs all sign off, the Personal Representative can make the distributions and ask the Court to close the estate.

The Personal Representative may also file the Accounting and Proposed Distribution with the Court and ask for Court approval of that proposal. The Personal Representative, with the assistance of his or her attorney, would set a hearing before the Court to ask for that approval. All the beneficiaries/heirs would receive notice of the time and place of that hearing. They would be entitled, at that time, to raise any objections to the proposal. The Court would then make orders about how the estate should be distributed. 

At this point, our foray into the estate administration process has come to a close. Hopefully, this series has helped to somewhat demystify the process. Thanks for reading.   

What Happens When You Die Part 5

Welcome back. The wonderful world of taxes is everyone's favorite topic. When it comes to estates and estate administration, "taxes" can take on many different meanings. Let's explore a few.

Estate Taxes

In the system we currently operate under, estates are potentially subject to a federal estate tax. Since we live in Illinois, an estate also may be subject to a state estate tax. (Many states do not have a state estate tax, but we have to fund the Chicago machine.) Any individual who passes away owning total assets that are less than $11,180,000 is currently exempt from any federal estate tax. This amount has recently increased substantially, and will affect only a small percentage of estates. The State estate tax exemption amount in Illinois is $4,000,000. These taxes, if imposed, are extremely punitive. (It is worth noting that this is a tax on money you were already taxed on during your lifetimes. Call your Congressman and tell him how ridiculous this is.) 

These estate tax exemption amounts can, and do, change from time to time. Even over the last ten years, these amounts have varied drastically.

Income Taxes

When an individual dies, the Personal Representative is charged with filing income tax returns for the deceased's last year of life. Those tax returns would be filed, if necessary, just as they were filed when the decedent was living.

In addition to filing a personal income tax return, the Personal Representative is also well advised to file income tax returns for the estate each year. The estate is a separate, taxable entity, so any income earned on assets of the estate during the administration of the same will need to be accounted for. Typically, the income is passed through to the beneficiaries by this filing. 

Inherited Assets and Tax Basis

With the exception of the taxes outlined above, there is no "inheritance tax" on assets inherited by a beneficiary. I supposed the government decided taxing assets 2-3 times was sufficient. An added benefit to a beneficiary of an estate is that the beneficiary gets a step-up in tax basis for inherited assets to the value at the date of death. (If that doesn't make sense, keep reading.)

The step-up in basis can be very advantageous if a beneficiary ever decides to sell an asset that has appreciated over the course of the deceased's lifetime. This is probably best illustrated with an example:

Deceased owned 40 acres of farm ground that he inherited from his father in 1953. The Deceased's tax basis in that asset would have been the value of the asset in 1953, which we will estimate to be $20,000. So, had the Deceased sold the asset in 2018 for $400,000, it would have been sold with a large gain. The Deceased would have been taxed on the difference between the sale price and the tax basis, or $380,000. If the Deceased's only son inherited the farm ground in 2018, after his father passed away, the son's tax basis in the ground is now the 2018 value, or $400,000. So, if the son sold the ground for $400,000, he would have no gain on the sale, and therefore no tax.

Next time, we will discuss finalizing the estate and how distributions are typically made.

What Happens When You Die Part 4

In our last installment (Part 3), we discussed the attorney's role in the estate administration process.  As promised, we will now explore how the debts of a deceased individual get paid.

As we have previously discussed, the assets of the estate are the assets that the deceased owned in their name only. Those assets, prior to any distributions to beneficiaries, are available to pay the debts that the deceased incurred during their lifetime. 

When an estate is opened, the Personal Representative (with the help of the attorney) is required to publish a notice of the case in a newspaper of general circulation within the County. That notice is known as a Claim Notice, and is published once a week for three weeks.  The first date of publication starts what is known as the "claim period." The claim period runs for six months from the date of first publication. It is a notice to the world that the estate is open, and anyone who believes they are owed money by the deceased must file a claim within that timeframe.

That's all well and good, but should people who are owed money be scouring the legal notices of the local newspaper to make sure they don't miss out? Maybe. However, the requirements for debts that the Personal Representative knows the deceased had are handled a little differently. It is a requirement that the Personal Representative send a Claim Notice directly to those known creditors. The creditor then has the burden of making a claim against the estate within a certain time period if they want to try to get paid. 

In addition to debts that are owed, there are various other claims that might be made against the estate. These might include spousal awards, minor child awards, etc. These are somewhat specialized, and I am not going to get into too much detail here, but they are worth mentioning.

If a creditor fails to make a claim after the requisite claim period runs, the creditor is barred from ever making a claim against the estate. So, after the claim period runs, the Personal Representative then knows what, if any, debts need to first be paid. They can then pay those claims and distribute the remaining assets accordingly.

But what if there are not enough assets in the estate to pay all the debts? Good question—I'm glad you asked. If there are not enough assets in the estate to pay the claims, the estate is known as an "insolvent" estate. We then must turn to our state law to determine which class any claims fall in. The law assigns a priority to different claims based on their class. For example, funeral expenses, costs of administration, and attorneys fees are all Class 1 claims. So, these types of claims would get paid first before we moved to Class 2 claims.  If you reach a class of claims that there is not enough money to pay, those claims get paid out pro-rata based on the available funds. Anyone in a lower class would lose out. 

As you can see, it is extremely important for the Personal Representative to wait to distribute assets until the claim period has run, especially with an insolvent estate. If a Personal Representative were to distribute assets early and be unable to reclaim those assets to pay debts, the Personal Representative would then become personally responsible for the amounts previously distributed.  Obviously, this is not a good scenario.

In our next installment (Part 5), we will discuss everyone's favorite topic: taxes.

What Happens When You Die Part 3

In the last installment (Part 2) we discussed the role of the Personal Representative in an estate administration. So, if there is a Personal Representative appointed for the estate, what does the Attorney do?

In practice, the attorney prepares documents for the Personal Representative. These may include Petitions, Affidavits, Notices, Accountings, Reports, Letters, etc. The laws of the State place many requirements on the Personal Representative, and the process of administering the estate must be followed. 

The attorney is available to guide the Personal Representative through the process of administering the estate of the deceased. As indicated in previous posts, the probate process is a procedure that is very foreign to most people. An experienced probate attorney can answer questions as the process moves forward and help the Personal Representative avoid potential pitfalls.  

As an example, a beneficiary may contact the Personal Representative and inquire about their distribution from the estate. The Personal Representative would be well advised not to distribute any funds from the estate until the claim period runs. (More to come on this later.)  

As with all cases, issues do arise, and the attorney is responsible for guiding the Personal Representative through the process. Sometimes the attorney can take on tasks that the Personal Representative may not be able to accomplish or has not been able to accomplish. For instance, some institutions or governmental agencies are very difficult to deal with. (The IRS immediately comes to mind.) It is sometimes much more expedient for the attorney to deal with these individuals than have the Personal Representative make multiple calls to resolve an issue.  

Many times, the attorney can attempt to mediate family disputes as an uninterested third party. This usually relieves the Personal Representative from having to deal with these types of issues in an already stressful time.  

The attorney's role in the process is varied, but it can be extremely helpful. I am somewhat biased, but the guidance and advice of an attorney throughout this process is indispensable. 

In Part 4 we will discuss how claims against the estate may arise, how they get satisfied, and their timing.    

What Happens When You Die Part 2

In Part 1 we outlined the road map for this blog series. Today we will focus on the role of the Executor/Administrator of the estate of the deceased.

A person's Last Will & Testament typically makes a nomination as to who the deceased wants to act as the Executor or Personal Representative of the Estate. Usually the document will make a backup designation for that position and waive certain statutory requirements for the Executor, such as waiving the posting of a bond, which is otherwise required to ensure the Executor does not misappropriate the funds.

When the deceased died without a Will, the Personal Representative of the Estate is known as an Administrator. The law dictates who will have preference to act as Administrator and the formalities that the Administrator must follow in order to act. Typically a spouse would have priority to act, and then the children of a deceased. Again, these default provisions may not be what the deceased would have wanted, but a Will is the only way to make nominations different from the State defaults.

Once a Personal Representative is appointed, they have several responsibilities. These responsibilities vary depending on the assets and debts of the deceased and who the beneficiaries will be. Some of these tasks include:

- Determining and notifying beneficiaries and creditors of the opening of the estate
- Notifying financial institutions of the death of the account owner
- Taking possession of real and personal property of the deceased
- Collecting any income due to the deceased
- Publishing a notice in a local newspaper
- Paying debts and taxes of the deceased
- Selling or transferring real estate and personal property
- Distributing all assets left after payment of debts and expenses

In Illinois, this process will take at least six months to finalize. However, a diligent Personal Representative can have the estate ready for distribution within that timeframe.

In the next installment, we will discuss the attorney's role in assisting the Personal Representative in the estate administration process.

What Happens When You Die Part 1

One of the certainties in this life is that we will one day die. What happens when we are gone depends greatly on what we did while we were alive. For the purposes of this post, I will leave the philosophical debates on the issue for another time and just focus on legalities.

When someone passes away, it puts into motion a series of events that attempt to finalize the affairs of the deceased on Earth. These include making notification to loved ones, funerals, burials, etc.—all that fun stuff that nobody wants to talk about but is inevitable for all of us.

One thing that seems like a mystery to those who do not have experience with it is the probate process, the legal process most commonly used to wind up and distribute the assets of the deceased. Through this series of posts, I hope to demystify this process.

Usually, when I meet with a loved one of a deceased, the first question I ask is whether or not the deceased had a Last Will and Testament. If so, the deceased is referred to as having died "testate." If not, the deceased died "intestate." When the decedent had a Will, I will read through the document to get some guidance on the course the probate process should take. When they do not, we must turn to the laws of the great State of Illinois. (I live and practice in Illinois, so this post is state specific.)

In the absence of a Will, the decedent has adopted the estate planning of the ever brilliant state lawmakers. The statutes give precedence to certain individuals to act as the Administrator of the Estate. They also dictate where the assets of the decedent should be distributed. At the risk of spoiling one of the overall takeaways of these posts, the default State rules usually are not desirable.

In the next installment, we will explore the role and difference between an Executor and an Administrator.

How Often Should I Review My Estate Plan?

There is no hard and fast rule about when an estate plan should be reviewed. However, with the new tax laws going into effect this year, it is probably as good a time as any.

As with any major life event, changes in the tax laws affect us all. For many Americans, an eleven million dollar estate tax exemption amount per individual means very few citizens will need to plan to avoid federal estate tax. However, there is a punitive State estate tax in Illinois, and that exemption amount is far less. The State estate tax lacks what is called “portability.” Without proper planning, you may be saddling your survivors with a large State tax liability that could have easily been avoided. 

What should you be reviewing? First and foremost, you need to make sure the estate plan still accomplishes the goals that were set out. Do my assets go where I want? Are my loved ones protected and will they be taken care of?

Next, are the individuals appointed to fill positions still able to do so? Are they alive? Are they capable? Do I still want those people to fill those roles? Your sister, who was your best friend but hasn’t spoke to you in five years, may not be the right person to raise your kids anymore.

Finally, you should make sure your assets are owned in a way that does not thwart your planning objectives. And consider: Do I want to make any gifts while I’m alive?

An estate plan is not a “set it and forget it” deal. It is ever evolving and always needs to adapt to changing life circumstances. An hour reviewing the plan with a competent attorney could save you or your loved ones a lot of time, money, and effort in the long run.

Guardians for Children

If you have children, once or twice every year or so you may have a minute of quiet reflection. In that excessive downtime, you may find yourself wondering who would take care of those precious bundles of concentrated energy if something happened to their parents. 

Those blessed to reside in the Utopian State of Illinois can control their own destiny with that determination. (Nobody tell Mike Madigan we are still allowed freedoms and have money that is not paid over to the State.) 

The Probate Act allows a parent to designate, in writing, who they would like to act as Guardian of a minor child if the minor child does not have a living parent. This written nomination must follow certain formalities, and including it within the terms of a Last Will and Testament meets those formalities. 

The laws of the State differentiate between a Guardian of the Person and a Guardian of the Estate.  The Guardian of the Person essentially steps into the caretaker role of a parent. This would be the person who takes the kids to school, feeds them, clothes them, bathes them (more accurately, argues with them until they finally surrender and take a bath), takes them to the doctor, etc. The Guardian of the Estate handles any assets that the minor owns, inherits, or comes to own until they reach the age of majority (18). There is another law that allows a Guardian of the Estate to hold assets until the minor attains the age of 21, but that is a topic for another day. 

A parent can nominate the same individual to act as the Guardian of the Person and Estate, or they can nominate different individuals for each position. For example, Aunt Suzie may be a wonderful caretaker of the children, but she would probably manage to spend the minors' inheritance before they attain the age of...tomorrow. In that scenario, a different nomination for the Guardian of the Estate would probably be smart.   

Whenever I draft a Guardian designation in a Will, it is always my hope that it will never be necessary. However, in this uncertain world, there is some peace of mind in having at least made the nomination, just in case. 

2017

As I looked through my camera roll for the past year, I was reminded of many things. First of all, I do not take many pictures, and the ones I take are not great. But, more importantly, I was reminded of all the positive and great things that happened in my life the last 365 days.

If you are anything like me, I sometimes (a lot of times) forget the positive, and get caught up in the negative. Sometimes the negative seems all consuming. We are bombarded with negative news stories and articles. After all, negative and tragic gets pageviews.

What sometimes gets lost in the overhyped negative is the good and the positive, which I believe continues to far outweigh the negative. The most tragic moments seem to bring out the best in people. 2017 has certainly seen its share of bad and negative.  But, in the face of the bad and negative, people have banded together to support and help. This proves to me that the good and positive is still winning.

I’m certainly not going to sit here singing koombaya and pretending bad things don’t happen. They have, they do, and they always will. There is evil in this world, and sometimes unexplainable, unimaginably bad things happen to good and innocent people.  That said, my hope and prayer for 2018 is that, God-willing, the good and positive will continue to tip the balance in its favor and that we all be reminded that the good is still winning.