Illinois Estate Planning Legal Questions

Just like any other creditor, the IRS can require the payment of outstanding taxes from the estate and trust of your father. The IRS has creditor collection rights not usually available to other creditors. If distributions from the estate are made while creditor claims are unpaid the creditor can reach the distributions in the hands of the legatees.... Read More

The federal estate tax applies to estates with assets valued in excess of $5,000,000. The estate tax is not likely to apply. The threshold for paying an inheritance tax to the State of Illinois is also very high and not likely to apply. As the heir and legatee you do not pay any tax on distributions from an estate.... Read More

The ownership of a cemetery plot is evidenced by a deed. Such deeds are generally not transferable except back to the cemetery. The cemetery should have records of ownership. The cemetery typically is responsible for opening the plot for burial and would do so based upon the presentation of the deed or based upon their own records. You should start by meeting with the cemetery to identify the plot owned by the deceased or family. If you can locate the cemetery deed that would settle all questions. If the cemetery deed cannot be located then the question of what happened to the deed and if it was sold back to the cemetery must be addressed.... Read More

Your deceased husband is on title right now. If you transfer the house in a sale your husband would have to sign the deed as one of the joint tenants. He is unable to sign the deed so you would record an affidavit of deceased joint tenant to explain why your husband is unable to sign the deed transferring the property. If you try to transfer only your interest in the property to your son that would introduce a third party to the title and trigger the due on sale clause in all mortgages. This is just as likely to cause the lender to call the mortgage due as recording an affidavit of deceased joint tenancy. If you are a co-borrower and continue to make the mortgage payments the lender is not likely to take any action unless a third party is brought into title.... Read More

Real Estate owned in joint tenancy by two individuals will be owned solely by the surviving joint tenant when the first joint tenant dies. Real Estate owned by an S Corporation will continue to be owned by the S Corporation when a shareholder dies. The heirs or legatees of the deceased shareholder will own the deceased shareholder interest. The Will or Trust of the deceased shareholder, if any, will control the identity of the successor owner. If there is no Will or Trust then the statute on descent and distribution controls and the spouse would receive a portion of the deceased shareholder estate and children, if any, would receive the remaining portion. If the shares are held jointly by two individuals then the surviving joint tenant would own the shares upon the death of the other joint tenant. There may be provisions in the Articles of Incorporation or a shareholder agreement that restricts the transfer of the shares in the S Corporation. There are many advantages to corporate ownership of Real Estate. You should meet with an attorney to discuss the rights, restrictions and obligations of a shareholder in the contemplated S Corporation.... Read More

The Property Settlement that was part of the Dissolution of Marriage should have dealt with the ownership of the house after the marriage was dissolved. You can enforce those terms. Your ex-husband must sign a deed that transfers the property to you. If the property settlement requires your husband to sign the deed and he refuses the Judge in the divorce court can be asked to hold in in contempt for failure to observe a court order. If he continues to refuse the Judge can execute a judicial deed. You will need to consult with a lawyer to follow the steps necessary to get to that point.... Read More

If there is no Will or Trust that states otherwise, children of the decedent will receive a portion of the deceased father's estate through the statute on descent and distribution. If there is a surviving spouse then the children will divide of the estate among them. If there is no surviving spouse then the children will divide the entire estate among them. If the deceased father has a Will or a Trust then the father's estate is distributed in accordance with the terms of the Will or Trust and the child can be disinherited. If the child is a minor or an adult dependent then the child will be able to claim a Child's Award in the probate estate. The amount of such an award is determined by the Court and is intended to provide support for a limited period.... Read More

There is no reason to delay distribution of the personal property. In fact, the trust directs that the beneficiaries divide up the personal property amongst themselves by agreement. Agreement on the distribution of personal property must be reached within 60 days. If agreement on the distribution of personal property cannot be reached within 60 days then the contingent method for distribution of the personal property is to be followed.... Read More

You should collect all the information you have about the unsigned Will and bring it to an attorney. There does not appear to be any indication that the Will was actually signed by your mother. There are some fact situations that will allow a copy of a Will to be probated where the original is lost. In this case you do not even have a copy of a signed Will. An attorney could evaluate the chances of a successful probate of the copy you have. Without a Will the estate will be divided evenly among the children with the share of any predeceased child being divided among the descendant of the predeceased child.... Read More

The purchaser of real estate taxes at a tax sale must follow a precise procedure to obtain title and ultimately possession of the real property. You should meet with an attorney to review the steps taken by the tax purchaser to date and what steps remain. Time is of the essence. The tax purchaser can exercise rights to ownership arising from the purchase of past due taxes at a tax sale. Such rights can be asserted against the estate of the deceased property owner. Opening a probate, having an estate representative appointed, and redeeming the tax sale will prevent the tax purchaser from gaining title to the real property but it must be done in a timely manner. At some point an estimate of redemption will have to be obtained and the taxes sold redeemed. You should meet with an attorney right away to determine what needs to be done and how much time remains to accomplish what needs to be done in order to preserve the real property.... Read More