Life is unpredictable, and it is important to be prepared for the worst. The estate planning process can help ensure that you and your family will have plans in place should the unthinkable happen. While many estate plans focus on what will happen after a person's death, it is also important to plan for potential incapacitation. Incapacity can be the result of serious illness or injury, or it could even be related to a mental illness. With proper incapacity planning, you can prepare for any potential issues that may arise in the future, and you can also ensure that your wishes will be respected should you become unable to make decisions for yourself. 

Understanding Incapacity Planning

Incapacity planning is the process of creating legal documents that will come into effect when you become unable to make decisions on your own behalf. These documents outline who will make decisions on your behalf, based on your wishes. Incapacity planning establishes how you will receive medical care and how your financial affairs will be handled if you cannot do so yourself due to illness or injury. 

The Benefits of Incapacity Planning 

Creating an incapacity plan provides peace of mind knowing that your wishes will be respected should anything happen to you or your loved ones. It serves as a safeguard against potential disagreements between family members over decisions regarding health care, finances, or other matters. An incapacity plan can also help avoid lengthy court proceedings by providing clear instructions about the types of treatment desired in the event of illness or injury. Lastly, having an incapacity plan in place can reduce stress and ease anxieties about the future for those involved by clarifying everyone's role within the family unit and outlining exactly what needs to be done in certain situations. 

Probate is a legal process that is followed after a person's death, and it ensures that the wishes of the decedent are carried out according to their instructions. Probate can help to provide closure to family members of deceased people, giving them the assurance that their loved one's final affairs have been settled correctly. Sometimes, however, disputes can arise during this process, which can cause significant delays and legal expenses while affecting the relationships between different heirs and beneficiaries. It is important to understand when these disputes can occur and what family members can do if they do arise. 

When Can Probate Disputes Arise? 

Disputes during the probate process most commonly occur when an individual is unhappy with the decisions the decedent made in their will or believes that the will is invalid. However, a will generally cannot be legally challenged just because someone is unhappy with their inheritance. Instead, these challenges will usually be based on the validity of the will, and a person may claim that the will filed in court during the probate process does not reflect the true intentions of the deceased person. Reasons for challenging a will may include:

• Fraud - A person may believe that a will that was filed is different from the document that was originally signed by their loved one. They may believe that the will was altered by someone else after it was signed or that a document was created without the decedent's knowledge, and their signature was forged by someone else. A person may also claim that the decedent was tricked into signing a will, such as when someone presented them with a document that they claimed was an insurance policy that needed to be signed.

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There are multiple types of trusts that can be created during the estate planning process. When you create a trust, you transfer certain assets into the control of the trust, and these assets will be managed by a trustee and distributed to different beneficiaries according to your instructions. A charitable trust is a type of trust that is created for the purpose of making donations to charitable organizations. Charitable trusts fall into two general categories: charitable lead trusts and charitable remainder trusts. Each type of trust has different benefits and drawbacks, so it is important to consult with an estate planning attorney to determine which type of trust is right for you.

Charitable Lead Trusts

A charitable lead trust (CLT) is a trust in which the trustee makes payments to a charity for a specified period of time. After this period ends, the trustee will transfer the remaining assets to other named beneficiaries. CLTs can be either grantor trusts or non-grantor trusts. Grantor CLTs are taxed as part of the grantor's estate, while non-grantor CLTs are taxed as separate entities. CLTs can be an effective way to minimize estate taxes and transfer wealth to beneficiaries in a tax-advantaged manner.

Benefits of CLTs include an immediate income tax deduction for the present value of the payments made to charities and the ability to transfer wealth to future generations while still providing support to charities during the donor's lifetime. However, these trusts may also have some drawbacks. Since they are typically irrevocable trusts, the donor cannot change their mind about the terms of the trust once it has been created, and the donor will not be able to access the assets held in the trust. 

There are a variety of steps that you can take to ensure that you and your family are prepared for the future. A revocable living trust is a popular estate planning tool that can be used to manage your assets and protect your loved ones after your death. With a revocable living trust, you can maintain control over your assets during your lifetime and specify how you would like those assets to be distributed to different beneficiaries. With the help of an experienced attorney, you can determine the best steps to take to address the current and future needs of your family.

Advantages of Living Trusts

A trust is a legal entity that can hold ownership of your assets. When you create a trust, you will transfer assets into the trust, and you will provide instructions that will be followed by a trustee regarding how assets should be distributed to your beneficiaries. With a living trust, you may serve as the trustee, which will allow you to maintain control over your assets. You can also make yourself a beneficiary, which will allow you to use your assets to meet your own needs. Since a living trust is typically revocable, you will be able to modify the terms of the trust at any time. After your death, a successor trustee that you have chosen will assume control over the trust's assets, and they will follow your instructions regarding the distribution of the remaining assets to beneficiaries.

Revocable living trusts can provide multiple benefits, including:

In many cases, businesses will need to lease space where they can conduct their operations. As a business addresses issues related to commercial real estate, owners or partners will not only need to find the right location and ensure that it will meet their needs, but they will need to create a commercial lease agreement with the property owner. When negotiating a commercial lease, landlords and tenants need to be sure to understand how various expenses related to the property will be handled.

Landlord and Tenant Responsibilities for Expenses

A commercial lease agreement needs to be clear about whether the landlord or the tenant will be required to pay different expenses. The types of expenses that may need to be addressed include:

• Property taxes - These are taxes that are assessed on the commercial property itself. In a net lease, these taxes will typically be paid by the tenant.

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If you are like most people, you may not fully consider issues affecting your health and medical care until it is too late. If an unforeseen accident or illness leaves you incapacitated and unable to make your own medical decisions, who will speak for you? A power of attorney for healthcare can ensure that your wishes are followed in the event that you are unable to communicate them yourself. With the help of an estate planning lawyer, you can make sure your needs will be met, no matter what happens in the future.

Benefits of a Medical Power of Attorney

When you create a power of attorney agreement, you will name a person who will be authorized to make certain types of decisions for you. This person is known as your “agent,” and they can be anyone who is over the age of 18 and who you trust to act in your best interests. If necessary, you can also name one or more successor agents who will be able to make decisions for you in the event that the first person you choose as your agent is unavailable or unwilling to serve in this capacity.

A power of attorney for healthcare will grant your agent the authority to make multiple types of decisions related to your health, welfare, and medical care. They will generally be able to decide the types of treatments you will receive and whether certain treatments may be declined or withdrawn. These may include decisions that affect life-saving, life-sustaining, or end-of-life care. Your agent may be allowed to decide whether you will be admitted to a hospital, mental health facility, or assisted living facility. They will also have access to your medical records and medical history. While your agent’s decisions will generally be related to the care you receive during your life, they may also carry out your wishes regarding the disposition of your remains, including making arrangements for organ donation, performing an autopsy, and burial or cremation.

The estate planning process involves decisions about how a person’s assets will be distributed to their heirs following their death. During this process, it is important to understand how different types of assets will be handled. Some assets may be passed to heirs through the probate process, in which the executor of the person’s estate will file their will in probate court, take an inventory of their assets, notify beneficiaries and creditors, and distribute the assets according to the instructions provided in the will. This process can be complicated, but a person may be able to make things easier for their loved ones by determining whether certain assets may be passed to their heirs without the need to go through probate.

Options for Distributing Assets Outside the Probate Process

Probate assets will typically include a person’s physical belongings or financial assets left to beneficiaries in their will. In many cases, court oversight will be required when these assets are distributed to heirs during the probate process. However, certain types of assets will not need to go through probate, and they can be directly distributed to beneficiaries following a person’s death. These include:

• Jointly-owned property - A person may co-own certain assets along with their spouse or other family members. For assets that are jointly owned with the right of survivorship, the co-owner will assume full ownership of the assets following a person’s death. These arrangements are often used for real estate property such as a couple’s family home. Other jointly-owned assets, such as shared bank accounts, may also be handled in this manner.

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Individuals and families have many options during the estate planning process. Regardless of a person’s age, they can put plans in place that will help them manage their assets, provide for the needs of themselves and their loved ones, and ensure that their property will be distributed to their beneficiaries. While wills may be used to address how assets should be passed to heirs after a person’s death, trusts may also be used to manage assets during a person’s life and ensure that they are distributed correctly to their beneficiaries. In some cases, a person may wish to combine these tools through the use of a pour-over will.

Using a Will to Transfer Assets to a Trust

Trusts can provide a number of benefits, including allowing a person to maintain control over their assets, provide for their own needs, and make sure assets are used for specific purposes when distributed to beneficiaries before and after the person’s death. Ownership of assets may be transferred to a trust, and a trustee will be provided with instructions on when and how to distribute assets to different beneficiaries. 

With a revocable living trust, a person will often act as the trustee and maintain control over their assets during their lifetime. Irrevocable trusts may also be used in certain situations, such as when a person wants to make sure their assets will be protected from creditors. A trust will include detailed instructions for how assets should be distributed after a person’s death. However, there may be some situations where a person owned assets that were not included in a trust, and they may want to make sure these assets will be handled the same as other assets after they die.

The rules and regulations governing condominium homeowner’s associations are often complex. There are specific rules about how the boards of these associations must conduct official business and what powers the associations have to enforce the rules against members who are not in compliance.

Controlling Documents

Condominium homeowner’s associations control all of the common areas of a building and are responsible for making sure all the unit owners pay their fair share of the fees for the operation of the association and the maintenance of the common areas. Each association has a declaration that sets forth the basic duties and rules of the association. If the board tries to exercise a power that is not listed in the declaration, a unit owner will likely be able to sue the board.

However, the declaration can be amended. Some common powers that are often added to a declaration through an amendment include the ability to make rules prohibiting owners from renting out their units or prohibiting pets in the units. Any amendments to the declaration must be approved by a vote of the unit owners.

When you enter into any kind of lawful business contract with another party, the terms of the agreement are binding, and you may face legal and financial consequences for failing to uphold them. This is certainly true for a commercial lease, in which the tenant has a responsibility to make regular rent payments to the commercial real estate property owner, as well as to utilize and maintain the space in accordance with the lease terms. However, sometimes unexpected circumstances make it difficult for tenants to fulfill their commitments. Since 2020, the economic impact of the COVID-19 pandemic and the effects of looting in many American cities have posed a serious threat to businesses, with owners often finding themselves unable to keep up with rent. In these cases, a force majeure clause in the original contract can be a saving grace.

What Is a Force Majeure Clause?

A force majeure clause protects the parties to a contract from being found in breach of contract due to events that could not be anticipated or controlled. Force majeure clauses often address acts of nature, like floods, tornadoes, and other natural disasters, in addition to acts of people, like riots, wars, and strikes. The involved parties may elect to be specific regarding the kinds of events addressed in the clause or include a more general catch-all statement. A force majeure clause can also stipulate what each party will be expected to do if a force majeure event does occur.

Invoking Force Majeure to Obtain Relief in Illinois

According to a 2020 Illinois Force Majeure Law Compendium, the party seeking relief, which is often the tenant in the case of a commercial lease, bears the burden of proof to show that unanticipated or uncontrollable events were the direct cause of their inability to fulfill the rent obligation or otherwise uphold the terms of the contract. The compendium states that courts may be more likely to accept a force majeure argument if the type of event causing the difficulty is specifically mentioned in the contract clause. An experienced attorney can help you build and present your case to give you the best chance of achieving a favorable outcome.

In many cases, the process of estate planning will be focused on how a person’s final affairs will be handled after their death. By creating a will or establishing different types of trusts, a person can make sure their wishes will be followed when the property they own is distributed to their heirs. However, an estate plan can also address a variety of issues that will affect a person prior to their death, including matters related to their medical care and finances. By establishing advance directives, a person can ensure that their wishes will be followed correctly throughout the rest of their life.

Advance Directives Addressing Medical Treatment and Other Issues

A person can make decisions in advance about the types of care they want to receive and how matters related to their property and finances will be handled. These directives will apply in situations where a person becomes incapacitated (such as when they are unconscious or in a coma) or experiences conditions that affect their ability to make decisions or communicate their wishes to others. Advance directives that may be created as part of a person’s estate plan include:

• Powers of attorney - With this type of legal agreement, a person can name someone who is authorized to make decisions for them. There are two types of powers of attorney, with a power of attorney for property addressing issues related to a person’s income, assets, and finances, and a power of attorney for healthcare addressing medical treatment and other forms of personal care. Powers of attorney can be very flexible, and they may only apply in certain situations or to certain types of decisions. A person can also specify their wishes for how different issues should be handled if they ever become incapacitated or are unable to express their wishes to others.

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During the estate planning process, the first step that many people take is to create a will. This legal document will detail a person’s instructions for how their affairs should be handled after their death. A will can be very helpful, and in addition to addressing how a person’s property should be distributed to their family members or other heirs, it may also name a guardian for the person’s minor children, detail their desired funeral and burial arrangements, and cover other important issues. However, there are many cases where creating one or more trusts in addition to a will can offer benefits. By understanding the purposes of trusts and the advantages they provide, a family can determine the role that these instruments may play in a comprehensive estate plan.

What Are Trusts?

A trust is a legal agreement in which a person will place their assets in the control of a person known as a trustee, providing instructions for how these assets should be managed and how they should be distributed to different beneficiaries. The assets will be owned by the trust rather than the person who created the trust (known as the trust maker or grantor). Setting up this type of agreement can provide multiple benefits, including:

• Flexibility - Different types of trusts may allow a person to continue managing their assets, or they may allow another party to take over the management of their property. In a revocable living trust, the grantor may also serve as the trustee, allowing them to decide how assets will be used while they are still alive. They will also name a successor trustee who will take over management of the trust after their death or if they become ill or incapacitated. In a living trust, the grantor may also be a beneficiary, and this will ensure that they can continue using their assets to support themselves throughout their lifetime. In other cases, a person may want to create an irrevocable trust that cannot be altered, which may ensure that assets will be protected from creditors or other parties. A grantor may also provide specific instructions for how their assets will be used, which may prevent them from being wasted by beneficiaries.

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The death of a loved one can be difficult. In addition to dealing with the grief that comes from losing a beloved friend or family member, it will also be necessary to address the person’s final affairs. The person who was named as the executor of the deceased person’s estate will need to complete the probate process. An executor will want to be sure they fully understand their duties and responsibilities during this process, and with the help of an attorney, they can take steps to make sure their loved one’s final wishes will be followed correctly.

Understanding the Illinois Probate Process

A person’s last will and testament will name someone that they wish to serve as the executor of their estate, such as a family member or close friend. Following the person’s death, the executor will be required to do the following:

1. File the will in probate court - By opening a probate case, the executor will begin the legal process of overseeing the estate. The court will officially appoint the person as the executor, giving them the right to administer the estate. In some cases, an executor may be required to post a bond, which will help ensure that they will administer the estate correctly.

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Buying or selling a home is a complex financial transaction. There are many issues that will need to be addressed before closing on a residential real estate transaction, including negotiating a purchase contract, securing financing, and addressing any issues uncovered in a home inspection. One of the most important issues involves making sure the title of the home can be transferred from the seller to the buyer. By working with an attorney to perform a title search, sellers can identify any issues that may hold up a transaction, and they can resolve these matters and ensure that the home closing will proceed smoothly.

Common Title Issues

Before a home’s title can be transferred, it must be clear of any “encumbrances,” which include any legal or financial issues that may prevent the transfer. By looking at public records that detail ownership of the home and any claims against the property, an attorney can make sure sellers fully understand the steps that will need to be taken before the closing can proceed. Some issues that may be uncovered during a title search include:

For many people and families, the process of estate planning is focused on what will happen after a person’s death. By creating a will or using tools such as trusts, a person can make decisions about how their final affairs will be handled, including how they will pass their assets to their heirs. However, an estate plan can also address how various matters will be handled before a person’s death. In addition to ensuring that they will have the financial resources they need, a person can make decisions about the medical care they will receive. This can help a family avoid uncertainty as a person gets closer to the end of their life, and the person can make sure their wishes will be followed if they become ill enough that they cannot express their preferences to others. A living will can often be the best way to address these issues.

What Is a Living Will?

A last will and testament will only take effect after a person’s death, and it will address a person’s final wishes. A living will, on the other hand, will address the medical care that a person may receive before their death. This legal document takes the form of a declaration stating a person’s preferences for medical care and treatment if they are terminally ill.

A living will is only applicable in situations where a person has an irreversible medical condition that will result in their death. Once a doctor determines that a person’s condition is terminal, and medical treatment would only serve to delay the moment of death, the living will’s terms will go into effect. These terms may address the types of medical treatment a person should receive and whether certain types of treatment should be withheld. By using a living will, a person can ensure that they will receive the proper treatment in cases where they become incapacitated and cannot make their desires known to others.

A person’s last will and testament details their decisions about how their final affairs should be handled following their death. Some of the most important provisions of a will involve the distribution of a person’s property to their heirs. In some cases, one or more a person’s loved ones may be unhappy with the decisions made in a will, especially if they do not receive certain property that they expected to inherit. In these situations, a person’s heirs, the executor of their estate, and any other interested parties will want to understand when a will may be contested.

Grounds to Contest a Will in Illinois

A person who has died is known as a decedent. After a decedent’s death, the person they named as the executor of their estate will file their will in probate court. The executor will take a complete inventory of the estate, notify the person’s heirs, and ensure that the person’s assets are distributed according to their wishes. During the probate process, an interested party (including a person named as a beneficiary in a will or another loved one who expects to inherit property) may contest the will based on claims that it is invalid.

Of the different estate planning tools that a person can use to ensure that their wishes will be followed during their life and after their death, powers of attorney can be some of the most powerful and beneficial. When a person creates a power of attorney agreement, they will name someone who will have the legal authorization to make certain types of decisions on their behalf. In many cases, a power of attorney will be “durable,” ensuring that a person’s wishes will be followed correctly if they become unable to make decisions for themselves.

What Makes a Power of Attorney Durable?

The person who creates a power of attorney will give another person, known as their “agent,” the authority to make certain types of decisions. These decisions will depend on the type of power of attorney that is created. A power of attorney for healthcare will address decisions related to a person’s medical care and personal needs, and an agent may be able to address issues such as the forms of treatment a person will or will not receive, whether they should be admitted to a hospital or mental health facility, and whether they should receive life-sustaining treatment if they are terminally ill. A power of attorney for property will address financial decisions, and an agent may be able to manage a person’s income and assets, make purchases or investments, pay bills and expenses, or manage a business.

In some cases, a power of attorney may be created with a start and end date. These types of agreements may be used in cases where a person gives their agent the power to enter into financial transactions on their behalf or in situations where a person wants to have their agent make medical decisions for them when they are undergoing surgery or other forms of major medical treatment. However, durable powers of attorney are used in many cases, and these types of agreements will continue to apply if a person becomes incapacitated. 

A last will and testament can be crucial for a person of any age. A will makes decisions about issues such as how a person’s property will be distributed to their beneficiaries, who they would like to be the guardian of their minor children, how their funeral and burial arrangements should be handled, and any other last wishes they want to address. However, there are some situations where a person may die without having a will in place. In these cases, family members and other loved ones will need to understand how the person’s final affairs will be handled.

Intestate Succession in Illinois

If a person had no valid will at the time of their death, this is known as dying “intestate,” and the laws of intestate succession will be used to determine how their assets will be distributed to their heirs. In Illinois, these laws state that:

• If a person was married and had no children or other descendants, their spouse will receive their entire estate.

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There are a variety of situations where a person may become unable to fully care for themselves or provide for their own ongoing needs. In some cases, a person may have developmental disabilities that prevent them from working full-time while also caring for household responsibilities, whereas in others, an elderly person or someone suffering from a debilitating injury or health condition may require assistance with daily tasks and activities. In these situations, legal guardianship, which is established in a probate court, can ensure that a person’s needs will be provided for.

Types of Adult Guardianship

Guardianships fall into two main categories depending on whether a guardian will be responsible for a person’s financial affairs or their personal needs. A guardian of the person will provide for a person’s ongoing care and comfort while ensuring that their health-related needs are met, that they have the appropriate living arrangements, and that they receive the proper education and professional services. A guardian of the person is required to help a person maintain as much independence and self-reliance as possible while offering the necessary support to ensure that they can be safe, happy, and healthy.

A guardian of the estate is responsible for managing a person’s property and finances. This may include making purchases or completing transactions on behalf of the person, entering into contracts, managing benefits such as life insurance or retirement plans, and paying expenses, debts, or taxes. A guardian of the estate is required to manage a person’s finances frugally while using the person’s assets to provide for the needs of themselves and their dependents.

Due to financial issues that have affected many people during the COVID-19 pandemic, the federal government has implemented a moratorium on foreclosures, which is meant to ensure that families can continue living in their homes during this public health emergency. While the moratorium has been extended multiple times, it is currently set to expire on June 30, 2021. This means that those who have been unable to make mortgage payments may face the loss of their homes. Some lenders have stated that they will resume foreclosures as soon as the moratorium ends, while others may wait to proceed with foreclosures until the end of 2021. Homeowners who are facing foreclosure will want to understand their options and determine whether they can work with their lender to create new payment options or whether they will need to find new living arrangements. 

Options for Homeowners Facing Foreclosure

To prevent foreclosure, those who have been unable to make mortgage payments will need to determine how they can become current on past-due payments, and they will also need to make sure they will be able to make ongoing mortgage payments. Homeowners may be able to work with lenders to address these issues, and available options may include:

• Forbearance - Those who have been unable to make mortgage payments may qualify for relief in which they will not be required to make payments for a certain period of time, or the amount of payments may be temporarily reduced. While missed payments will need to be made up, homeowners will generally not be required to pay a lump sum at the end of the forbearance period. Instead, missed payments may be added on to the end of the loan, or the amount of payments may be increased temporarily. Homeowners who received a forbearance before June 30, 2020 may request up to two extensions of three months each, but the maximum period for forbearance is 18 months.

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