Everyone needs to plan for their future. Although it is difficult to think about your mortality, it is much better to think about it now than later. Make the time to plan for the future of yourself and your family.

At Fornaro Law, we will help you come up with a plan and will be there with you to address your life decisions when they happen. Whether it is a will, trust, guardianship, estate issue, or other matter, Fornaro Law is here for you.

Estate planning is about more than just making sure your loved ones are provided for in accordance with your final wishes. It’s also about:

  • Ensuring that you (and your spouse, if you are married) will be properly cared for in accordance with your wishes while still alive if you (or your spouse) should ever become incapacitated.
  • Taking measures to prevent the wealth you worked all your life to build from being depleted by avoidable taxes, unnecessary probate costs, or excessive estate administration expenses.
  • Taking steps to ensure that the inheritance you intend to pass on to your loved ones will withstand unanticipated circumstances.

If you have not yet done any estate planning

Each of us has an intrinsic responsibility to lessen the burden on those we love if something should ever happen to us. That includes death, but it also includes becoming incapacitated by a serious illness or injury. None of us would ever want our loved ones to bear a heavier burden merely because we failed to plan. That is what estate planning is all about.

Estate planning is not only for people who just retired

It is also for people just starting their careers, whether married or single, whether with children or no children, whether in good health or poor health, and whether wealthy or poor.

Planning saves money helps avoid hardships

Many people put off estate planning because they think they have plenty of time to do it later. Unfortunately, our office sometimes receives phone calls from people whose loved ones became unexpectedly incapacitated or passed away without having done any estate planning. When this happens, the lack of planning can result in things happening by operation of law that are inconsistent with the loved one’s wishes or expectations. It can also result in unnecessary time and expense for the family members trying to manage the situation. Estate planning helps avoid those hardships.

None of us know if anything will ever happen to us. What we all do know, is that none of us will live forever. We do not know how or when our lives will come to an end. We also do not know if a serious illness, injury or some other form of legal incapacity will befall us at some point in our lives, or, if it does, when it will occur.

The bottom line is this. No matter where you are in life, if you have never previously done any estate planning, the best time to begin is right now.

If you have already done some estate planning

If you (and your spouse, if you are married) already have a will, a trust, and/or powers of attorney, then you are already a step ahead of those who do not.  But this does not mean there is no longer any need for estate planning. Some questions to ask yourself include the following:

With regard to your (or my spouse’s) estate planning documents, ask yourself these questions:

  • Were they prepared more than five years ago?
  • Do they fail to provide instructions and resources for my care (or that of my spouse) in the event that I (or my spouse) become(s) incapacitated?
  • Do they fail to provide for the needs of any of my beneficiaries that might, at the time that I (or my spouse) pass away or become incapacitated, suffer from a disability of any kind?
  • Do they fail to provide for the care of any minor children I may have?
  • Do they fail to enable my estate (or that of my spouse) to avoid becoming bogged down in probate court?
  • Do they fail to anticipate that an intended beneficiary might receive a lump sum from life insurance proceeds or some other source that he or she is too inexperienced or immature to manage?

With regard to property, have I (or my spouse) recently:

  • Acquired property or disposed of property that might cause directions to executors or trustees to become obsolete?
  • Received property from a parent or other family member through inheritance?
  • Acquired or disposed of real estate or another significant investment or thought about doing so?
  • Obtained or eliminated one or more policies of life insurance, disability insurance, or long term care insurance or thought about doing so?
  • Paid off any large loans or assumed any new loans or thought about doing so?
  • Experienced significant increases or decreases in income?

With regard to personal circumstances, have I (or my spouse) recently:

  • Moved to another state or thought about doing so?
  • Had a new child or are expecting one?
  • Experienced significant changes in medical treatment or medical care?
  • Filed for social security or Medicare or Medicaid benefits or anticipate doing so?
  • Changed your estate beneficiaries or distribution plans or thought about doing so?

With regard to marital status, have I recently:

  • Been married or remarried or made plans in that regard?
  • Been divorced?
  • Lost a spouse?

Have I not had an attorney or financial advisor review my situation within the last five years to recommend any adjustments that may be needed in light of recent changes in applicable laws and regulations?

If you answered yes to any of the above questions, then you are likely in need of some additional advice concerning your estate plan.

What is an Estate?

Your “estate” consists of all property owned by you at the time of your death. It includes:

  • Real estate
  • Money in bank accounts
  • Property you own such as automobiles, home furnishings, jewelry, artwork and other personal effects,
  • Stocks and other securities
  • Life insurance policies

Unless you have made other arrangements through proper estate planning, when you pass away, your estate will be required to go through probate. Probate can sometimes be costly, slow things down and, if you do not at least have a will, result in your property being distributed in ways you never would have intended.

Can probate be avoided?

Yes.

There are several ways that probate can be avoided.

  • If you own assets with beneficiary designations, proceeds generally will bypass probate and go directly to the named beneficiary. There are some exceptions to this, and the estate planning process helps steer clear of those.
  • If you have a properly drafted will, and the gross value of property held in your name with no beneficiary designations is below a certain threshold, then your estate will be exempt from probate. However, if that gross value is above that threshold, then probate will be required.
  • If you have a properly structured revocable living trust, and the trust is properly “funded,” it will allow you to transfer your property into the trust and pass that property directly to your intended beneficiaries entirely outside of probate.

So what is a will and why is it important?

A will is a written legal document that governs the division and distribution of assets held in your individual name at death.

If you do not have one, then you will be presumed to have passed away “intestate” and all of the assets in your estate that have no designated beneficiary will more likely than not be distributed by a probate court judge you have likely never met, according to laws and distribution rules with which you are likely unfamiliar.

A properly prepared will does not avoid probate, but it does provide guidance and direction to a person you appoint – known as an executor – on how you want your estate divided and distributed. Accordingly, through the use of a will, you can exercise control over how you want your estate distributed.

My relative/family member recently died without a will, what now?

If someone dies without a will, then he/she died intestate.  The state where he/she lived will handle his/her  estate and distribute his/her assets.  In order to do this, the state will look to the intestate succession laws.  These laws set forth a formula and a procedure that dictates how his/her assets will be distributed.  Depending of the type and value of the estate assets, this process may require the opening of a probate case.  The probate court judge will appoint a personal representative and decide who inherits property.  If your relative/family member recently died without a will, contact a member of our Estate Administration Team for help.

Do I need to have the original will?

Yes.  When someone dies in Illinois, the probate court will be interested in seeing the decedent's original will, as it is difficult to probate an image or photocopy.  In Illinois, with limited exceptions, the original will must be filed with the probate court within 30 days of death.  The members of Fornaro Law's Estate Administration Team can assist you with this.

What happens if I can't find the original will?

If the original will cannot be found, there is a legal presumption that the reason it can't be found is because it was revoked.  However, there are certain circumstances in which a lost or destroyed will may be probated.  If it can be proved that the will is valid and that it was not revoked by the decedent, and if all of the heirs and legatees are in agreement about the legitimacy of a copy, the court may permit admission.  Getting a lost will admitted to probate is difficult and an experienced estate administration attorney can help you with this process.  Contact a member of Fornaro Law's Estate Administration Team for assistance.

How do I gain access to my deceased relative's/family member's bank account? 

Before the bank turns over access to an account, it will quite reasonably insist on proof that you have the right to it. There are several ways to produce such proof:

  • If you are named on the form provided by the bank, as the "payable-on-death" (POD) or "transfer-on-death" (TOD) beneficiary of the account, it's simple. You can claim the money by presenting the bank with the death certificate and proof of your identity.
  • If a probate case has been opened, you'll need to provide the bank with written authorization (usually called Letters of Office or Letters of Administration) from the probate court.
  • If the estate is small enough, under state law, to qualify for "small estate" procedures instead of regular probate, you may be able to claim the account with a simple affidavit in which you swear that you are entitled to the money under state law.

If you are not sure how to proceed, now is a good time to contact a member of Fornaro Law's Estate Administration Team.

If there has been a death in the family, what should I do?

When a relative/family member dies, you might have the responsibility of closing out the person's life.  This can be challenging and overwhelming.  There are many things to attend to, from providing a proper tribute or memorial service to closing bank accounts to notifying the person's employer.  The list goes on.  Some of these things require more immediate attention.  Others can wait several weeks.  Many of these tasks require attention to detail, which adds stress to what is already a very emotional time.  Working with an experienced and knowledgeable estate administration lawyer can help.  If there has been a death in your family, contact a member of our Estate Administration Team.

What is probate? How much does probate cost? How long does probate take?

Probate, otherwise known as Estate Administration, is a court proceeding designed to settle the affairs of a deceased person which entails collecting, inventorying, and distributing assets. The assets and liabilities will make up their "probate estate" or "estate" for short. In Illinois, court involvement may be required depending on whether the deceased person owned real estate and the total value of the estate. 

 

The costs and duration of a probate proceeding varies based on a number of factors. Some factors include whether the deceased person had a will, whether you can find the original will, whether a bond is required, the number of heirs, the number of creditors, whether real estate is being sold, and whether or not the proceeding is contentious. To learn more about the costs and duration, contact a member of our Estate Administration Team

What is a small estate affidavit? What are the exceptions to probate?

A small estate affidavit is a legal document that allows a person to settle the affairs of the deceased person without court involvement or approval. The use of a small estate affidavit is an exception to probate. A small estate affidavit allows the person signing it, the "affiant", to act on behalf of the deceased person. The affiant can do all the things that a court appointed legal representative can do, such as gain access to the deceased person's bank accounts, communicate with third parties and otherwise settle the deceased person's affairs. In Illinois, there are many factors that determine whether a small estate affidavit is appropriate, including, among other things, whether the deceased person owned real estate and the total value of the estate. For answers to these questions, contact a member of our Estate Administration Team.

Can the deceased person's creditors collect money after he/she passes away? Do the deceased person's bills need to be paid and if so, how? 

In most cases, a deceased person's debts still need to be paid and his/her creditors can collect the money owed. In fact, his/her creditors need to be paid before any inheritance payments are made. This is because his/her creditors have a priority interest over his/her heirs. If you have questions about whether there are enough funds to pay all his/her creditors, whether you will receive an inheritance, or if you have been contacted by any of his/her creditors, contact a member of our Estate Administration Team

How do I change the title on my deceased relative's/family member's vehicle?

There are four ways to transfer the title on the deceased relative's/family member's vehicle:

  • by order of the probate court;
  • via a small estate affidavit;
  • via an attorney affidavit; and
  • by a surviving joint owner.

Only an authorized representative may transfer the vehicle. The vehicle must be transferred at an Illinois Department of Motor Vehicle ("DMV") and an Illinois DMV will only transfer the vehicle to an Illinois resident. One of the documents that you will need to transfer title is the original title.

If need help transferring a vehicle or you cannot find their original tile, contact a member of our Estate Administration Team.

Do I need to hire a lawyer to probate a will?

Under Illinois law, a person is not expressly required to hire a lawyer to probate a will. However, due to the complexity of the statutory requirements and the potential adverse consequences of self-representation, judges often require people to hire a lawyer. Moreover, because a legal representative may be personally liable for any mistakes made when administering the estate, it is always a good idea to hire a lawyer. Usually, the lawyer's fees are paid from the estate's funds.

Use Fornaro Law’s experience to your advantage. Contact a member of our Estate Administration Team.

What if my relative died with assets but did not have a will?

Under the state's intestacy laws, assets will pass to a person's heirs in a structured fashion without any influence or designation by the person who died. Depending on the value of the assets, the person's living relatives may be required to file a probate action in order to properly distribute those assets and resolve any debts. In Illinois, the law sets forth the percentage to which each heir is entitled.  For example, a spouse may receive 50% of the assets under Illinois law, while the decedent's children may split the remaining 50%, equally.  If no spouse or children exist or are living, then distant relatives may receive an inheritance depending on the decedent's family tree.  The intestacy laws can be further complicated by divorces, second marriages, and adoptions, so contact a member of our Estate Administration Team to assist you through this process. 

What is a Will?

A will is a legal document that expresses a person's wishes as to how his/her property is to be distributed after his/her death and which person is to manage the property until its final distribution.  A will also determines how a person's minor child(ren) will be cared for in the event that the other parent/legal guardian is dead or legally incapacitated.  A will can greatly impact a person's loved ones after his/her death, and a lack of a will can result in unintended and adverse consequences.  As such, it is a very important legal document that requires the assistance of an attorney. Please contact a member of our Estate Planning Team to get started today.

What is a Trust?

A trust is a legal document that allows property to be passed to heirs and beneficiaries without going through probate.  A revocable trust gives the full control of the assets held in the trust to the grantor (i.e., the person setting up the trust). In addition, all income and distributions from the assets in the revocable trust are given to the grantor during his/her lifetime.  Irrevocable trusts give full control of the assets held in trust, and income generated by those assets, to someone other than the grantor and cannot be revoked.  A trust can be far superior to a will, but there can be significant legal and tax implications when creating a trust, so you should contact a member of our Estate Planning Team for a free consultation. 

Who will inherit my assets/home? Who are my heirs?

An heir is a person who is entitled by law to inherit the estate of another. Illinois law identifies your heirs. For example, if you die without a will and you are married with children at the time of your death, your heirs are your spouse and children. Illinois' intestacy rules govern who receives a person's assets/home if he/she dies without a will.  To avoid Illinois' intestacy rules, a person can dictate who receives his/her assets/home by creating a trust or will. In this regard, you can control who inherits your assets using a will or trust.  Therefore, the people who will inherit your assets/home can be whoever you want them to be, and conversely, you may not inherit a relative's estate depending on that person's wishes.  To discuss your specific circumstances, please contact a member of our Estate Planning Team for further guidance.

Is there a way to avoid probate?

To learn how to avoid probate please visit Fornaro Law's Estate Planning Page.

Our Estate Planning & Probate Team:

Attorneys

Staff