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You have been chosen by a family member or friend to act for them or on behalf of their family in times of need.  While you want to help, it is a big responsibility that can be very time-consuming and emotionally draining.  It is easy to feel overworked and underappreciated.  The saying “It is a thankless job, but someone has to do it” is directly on point.

Some of the duties involved in acting as executor and probating an estate are:

• File the will in the correct court;
• Collect, protect and inventory the estate;
• Notify all heirs, beneficiaries and creditors of the estate;
• Publish notices of death;
• File all required taxes;
• Prepare and provide accounting for approval of heirs or legatees.
• File all required taxes;
• Distribute assets; and
• Close the estate.

While serving as trustee for a trust administration is different because it can sometimes be handled privately, outside of the court, many of the fiduciary duties are the same. If you miss a step or file something incorrectly, it can create delays and cause a major headache while you try to back-step and get everything corrected.

Wouldn’t it be a relief to get the beneficiaries off your back?  Make your life simple again?  Reduce your personal risk?  Spend less time?  Delegate?  Preserve family relationships?  Balance the many demands of this job with your other work and personal time?

The key to a smooth, efficient, worry-free estate or trust administration is to have a plan.  You need a plan for administering a probate or trust estate that is as efficient as possible with the least amount of time and energy required.

How does that happen? You have two options:

1. You can do work, take a wage for your time, pay taxes and hope that you do things right. You can deal with family members, jealousies, and family history yourself. You can risk damaging family relationships, making mistakes and opening yourself up to liability and litigation.

OR

2. You can have someone who has the expertise do the work in less time and with higher quality.  Hiring an expert protects you from personal liability. A professional can remain neutral and objective and complete the job without the emotional aspects coming into play.

By hiring expert legal advisors, you will learn exactly what needs to be done and get help to do it.  At Matlin Law Group, P.C., we equip executors and trustees with the skills and strategies to keep both probate estate and trust administration on track and bring balance between the job of executor or trustee and your personal life. Matlin Law Group is your resource for both outsourcing your fiduciary workload and receiving strategic direction – a sustainable plan for successful estate and trust administration.

Schedule a consultation and get on the right track toward a successful estate administration today. SCHEDULE  A CONSULTATION

When a person passes away with a will, that will is submitted to probate. Probate is the process by which the directives in the will are carried out, creditors are paid and property is distributed. In some cases, people may want to contest the will. That means they think the will is invalid for some reason. If you are an interested party and think that the will is invalid, you should contest the will. The process can get very complex, very quickly. Here are the basics of what that process looks like.

Petitioning

From the date the will was admitted to probate, you only have six months to file a contest to the will. You will need to file a petition in the same probate court that the will was submitted. Among other things, you will need to include the deceased’s name, date and place of death along with the corresponding court case number for the probate proceedings. You will also need to explain why you are contesting the validity of the will. Some reasons, or grounds, for contesting a will are:

• Lack of capacity of the person who made the will;
• Undue influence; or
• Fraud.

When filing the petition, you may ask for a jury trial. Even if you do not request a jury trial, the executor of the estate may ask for a jury. If neither party requests a jury trial, the case will likely be heard by a judge.

Once you’ve filed the petition, you are required to notify all individuals entitled to notice. These people will include anyone named in the original probate petition, the executor, and the executor’s attorney. You will need to deliver a copy of the petition to each of those individuals. The rules on how to deliver that notice vary by court and should be done in accordance with local rules.

Who defends the will?

The executor of the will is required by law to defend the will. If that person is unable or unwilling to do so, the court may appoint someone else to do so. Defending the will includes not only defending the validity of the will but also appeal judgments that declare the will invalid.

If you believe a will is invalid or if you are defending a will contest, give us a call at (847) 770-6600.

Have you been appointed as the executor of an estate? Carrying out your duties can feel overwhelming and sometimes like a second job. Just because you are named as the executor in a will does not mean that you have to accept the job. Only accept if you are willing and able to take the responsibilities seriously and devote the necessary time to the job.

If you accept your role as executor, there are some things that you should expect to be required to do. Take a look at these 6 common requirements before you agree to serve as executor.

1. Find and obtain documents. You may be required to find the original will and submit it to the court. You will also need to obtain a death certificate and file that with the court. You may also need to locate other documents related to the deceased’s property and debts.
2. Notify all relevant parties. You will be required to provide notice of probate proceedings to all interested parties. This typically includes beneficiaries named in the will as well as family members. You also need to notify all potential creditors. Depending on the complexity of the estate, you may need to provide notice multiple times throughout the process.
3. Manage the property. Probate does not happen overnight. While waiting for the property to be distributed, you will have to manage the property. This includes paying debts or bills that come up. Of course, you will use money from the estate to pay these bills and not be personally responsible for them. You may need to hire an appraiser to value certain properties. If the deceased owned a business, you may be responsible for ensuring the business continues to run.
4. File tax returns. Part of your job as executor is to file tax returns. There are deadlines for these to be filed and paid. Delays could cause fines, penalties and interest to accrue.
5. Distribute the assets. When the time comes, after creditors have been paid, you will need to distribute the property in accordance with the will. This may include selling property. Document each transaction to ensure beneficiaries cannot claim any wrongdoing on your part.
6. File documents with the court. Throughout the process, you will be required to account for your actions to the court. This means documenting interest gained on property, creditor claims paid out and property distributed. A final accounting will show that all of the property has been distributed. Once the court approves the final accounting, the estate is considered closed.

If you’ve decided to say yes to the job, take a look at the book Not Dead Yet (particularly Chapter 17) for some tips on how to be successful in your role.

Not sure if you want to serve as executor? Give us a call at (847) 770-6600 and we can help you make that decision.

Let’s back up a little bit and talk first about what a health care power of attorney is. A health care power of attorney ensures that your medical wishes are carried out even if you are unable to communicate those wishes. For example, if you are unconscious or incoherent and cannot consent to medical procedures, a healthcare power of attorney will handle those issues on your behalf.

What does a Healthcare Power of Attorney do?

A health care power of attorney document can do two things: explicitly state your medical wishes and appoint an individual to make health care decisions on your behalf. Those two things tend to work in tandem – the individual you appoint will use your explicit wishes as guidelines on other issues that may not be clearly spelled out in the document.

In a health care power of attorney, you can state things such as:

• Whether you want cardiac resuscitation
• Whether you want a feeding tube; and
• Whether you want mechanical respirator.

Who Should I Appoint as My Health Care Power of Attorney?

Deciding who to appoint as your health care power of attorney is a very personal decision. Many people choose family members such as spouses, parents or adult children. It’s important to talk with the person you want to appoint and ensure they agree to serve and understand their responsibilities as your health care power of attorney. If you are unsure of who to appoint, we can certainly help you make a list of your options and decide on the best person.

Who Needs a Health Care Power of Attorney?

To be frank, everyone over the age of 18 should have a health care power of attorney in place. Children under 18 do not need one because their parents act as their guardians; in fact, no one under the age of 18 can legally create one. However, as soon as you turn 18, the law does not designate someone to make decisions on your behalf. We never know what the future holds and when tragedy may strike – that’s why it’s important to have this document even if you are 100% healthy.

Without a health care power of attorney, there may be arguments and confusion among family members. The courts may have to intervene. And most importantly, there is no guarantee that your wishes will be carried out. Remember, if something unexpected were to happen, your loved ones will be experiencing a lot of emotions; having your wishes documented will at least take a little bit of stress off of your family members.

Want to learn more about why everyone needs a health care power of attorney and other documents we should all have? Check out the book Not Dead Yet (specifically Chapter 8) for information on health care powers of attorney, HIPPA authorizations and more.

If you’re ready to create your Health Care Power of Attorney, give us a call at (847) 770-6600.

We often hear the from our married clients who have double income and no kids: “We do not have any kids so we only need simple estate planning, if we need it at all.” This leads to the question: DO “DINKs” (Double Income, No Kids) Even Need Estate Planning? 

The answer is YES! DINKs need at least as much estate planning as anyone else. It is especially important for a couple with no children to carefully choose the people who will make healthcare and financial decisions for them if they are disabled. We find that the worst people step up to the plate to “help out” in the absence of preset direction from YOU. At the very least, powers of attorney and various contingency planning, whether via wills or trusts, are called for.  When our clients think about their family members who might volunteer for the job of handling money for them, they often shudder at the thought. Especially as they get older, the thought of being taken advantage of looms in the horizon.

Why leave it to chance? TOMORROW IS RIGHT AROUND THE CORNER – PLAN TODAY

In our practice, we treat DINKs as a type of blended family when giving them estate planning advice. DINKs are similar to second marriage situations, where there may be “his,” “her,” or “their” children. Assuming the DINK couple want to primarily benefit each other during their joint lifetimes, then any analysis leads to contingency planning. This is because if either of them wants money to ultimately go to his or her family, friends or charities, the choice is either cashing out those contingent beneficiaries upon the death of the first-to-die or careful trust language protecting the rights of the intended secondary heirs of the first-to die spouse during the lifetime of the surviving spouse.  Leaving everything outright to the survivor with the expectation that he or she will not change the flow of assets to the first-to-die person’s preferred set of ultimate beneficiaries very often results in those people or charities getting nothing.

Everyone needs planning, including DINKs! CONTACT US TODAY FOR A FREE ESTATE PLANNING CONSULTATION

In the recently decided appellate case, In re Estate of Marion Young Tait, the third district of the Appellate Court of Illinois was faced with a trial court that removed a guardian of a disabled person without substantially complying with the codified procedure in section 23-3 of the Probate Act of 1975. (755 ILCS 5/23-2 (West 2014).[1]

The guardian of the estate, the disabled person’s daughter, appeared to have some trouble filing an annual report and annual accounting report.  The guardian ad litem objected to the annual accounting reports and requested a pre-trial conference to discuss those reports. The pre-trial conference took place the same day that the guardian ad litem made the request, which occurred at the hearing for approval of the accounting reports.

At the pre-trial conference, the Judge determined that the daughter should be removed as guardian of the estate.  No evidence was provided showing that the daughter was given the opportunity to participate in the hearing.

On appeal, the appellate court determined that the trial court must “substantially comply” with the procedure set forth in 23-3 of the Probate Act.  The procedure requires the issuance of a “citation to remove” directing the guardian to show why she should not be removed as guardian of the estate. This hearing on the citation to remove must be fair, which at minimum requires reasonable notice of the hearing and a fair opportunity for the guardian to defend against removal.

The appellate court determined that the court did not provide proper notice of the hearing (since the hearing on removal appears to have been spontaneous) and the guardian was not given the opportunity to respond since no evidence is on record demonstrating that she was permitted to participate in the hearing.

The appellate court ruled that the trial court did not substantially comply with 23-3 of the Probate Act and remanded the matter to the trial court for a removal hearing.

[1] http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/3rdDistrict/3150834.pdf

If you have any questions regarding guardianships, please contact Matlin Law Group, P.C. at 1-847-770-6600.