Illinois Estate Planning Legal Questions

An Executor named by the Testator under a Will does not have to be a relative. It can be a friend. An out of state person can serve as executor, even if that person may have to rely on an in-state attorney to assist with ministerial acts. A financial institution may be willing to serve as an executor. If you are considering a financial institution you should speak with the institution to make sure they are willing. Typically, a financial institution will turn down the opportunity if the estate is below a minimum value. Some attorneys are willing to serve as executors.... Read More

You need to examine the deed to the property. How was the property held by your mother and stepfather. Was the property held in trust? Was it held by your mother and father as tenants in common or joint tenancy or tenants by the entirety? You should have an attorney look at the deed and explain. If held in joint tenancy by your mother and stepfather, then upon your mother's death the entire property was passed to your stepfather as the sole surviving joint tenant. Upon his death it would pass to his heirs. If your stepfather had a will then the will controls who receives the property. If there is no will then the property would pass to your stepfathers descendants. The property would be divided equally among his children, those born to or adopted by him. A probate would have to be opened to transfer the property to his children after all claims were paid. If the property were held as tenants by the entirety then the property follows the same path as in joint tenancy. If the property was owned by your mother and stepfather as tenants in common and there is no will, then your mother's descendants share in one half of the ownership and your stepfather's descendants share in the other half of the ownership. A probate would have to be opened to transfer the property. If the property were held in trust then the terms of the trust would control. There would not have to be a probate.... Read More

Prenuptial Agreements are susceptible to being overturned or modified if they are not carefully drafted, full disclosure of assets is not made of record in the document and both parties are not represented by separate counsel that fully explains their rights and obligations. I recommend that both parties discuss the proposed agreement with separate counsel before you proceed.... Read More

Unless a holographic will was signed by the testator in the presence of 2 witnesses and the witnesses signed the will attesting to the testator's signature and capacity, the holographic will is not a legally enforceable document in Illinois. Even so, the holographic will can exert moral suasion. If there was no proper will then your father's assets must be distributed as required under the statutory rules of descent and distribution. The terms of the holographic will can guide your actions provided they are not in conflict with the legally required actions under a proper will and/or statute. There is no legal requirement to follow the terms of a holographic will. If the holographic will was properly witnessed a probate can be opened and you can attempt to collect the assets and give effect to the terms of the will. You should consult with an attorney. The passage of time may hinder or prevent a complete reinstatement.... Read More

If the bank made the loan to your deceased grandfather, then getting a modification is going to be impossible. Banks discriminate shamelessly against the formerly animate, just because the dead haven't made payments in the past, banks stereotype all deceased persons as bad risks. Even Obama cruelly cuts off their Social Security benefits on the pretext that they have no living expenses. Your aunt needs to take out a new loan in her own name.... Read More

You would need to set up a guardianship of your daughter for her estate so that the insurance company will pay it. If a beneficiary is a minor, they cannot inherit the money outright, it must be held for them until they reach majority. If you are her legal guardian, you can be appointed guardian of her estate and look over the money for her until she reaches 18.... Read More

An executor is a person named in a Will, so they are administrators not executors. There should be no taxes due on a life insurance policy. I am not an expert on probate law and I do not know in which state she lived, but i don't see offhand why she would get anything from a retirement account [dying is not retirement] and why it would be taxable to her estate [if she had already retired and her employer had not made all the payments she was entitled to, those payments might be treated as income to the estate so subject to income taxes as being wages]. You need to find out their rationale for any taxes being due. They should not have paid anything from her husband's estate as there appears to be no connection to her estate. But what is the legal harm to you? You are only entitled to the funds your state's probate laws grant to you. If you were overpaid, why should they not be allowed to take back the over payment as you were never entitled to that amount. You want them to pay for their mistake in giving you more money then they should have! If you want to follow the law, on behave of the estate, they should sue you, get a judgment against you [which effects your credit rating] which you then have to pay, which then further reduces the amount you get because the estate has to pay for the lawyer to sue you and collect from you, so you end up with even less money. Her husband's estate would then have to sue them to collect back the money they should not have taken from his estate, the estate will not collect back all of its expenses, so the amount distributed from his estate will be less. Sounds to me the only ones who benefit from what you suggest are the attorneys who get involved.... Read More

You have no rights whatsoever. Your daughter may have rights if parentage was determined by an order of court or he signed anything acknowledging that she is his child. It also depends on his estate plan. He may have a will that leaves nothing to your daughter, or everything to her. He has the right to leave his estate to anyone he wishes, except he cannot leave out a spouse. Or he could have put everything into a trust, avoiding probate and leaving the trust estate to whom he wishes.... Read More

The revisions done on the pages of the Will would have no legal effect to change the Will. All amendments to a Will must be executed and witnessed in the same manner as any new Will. The changes on the face of pages of the original Will could open the Will to a challenge that the Will has been revoked by the creator of the Will. To avoid such a challenge the old Will should be replace by a new Will.... Read More

Is the claim being pursued through a probate proceeding? If there is no Will and there is a spouse at the time of death then the spouse is a legatee of a decedent's estate assets and a parent is not. If you have a valid claim against the estate assets then your claim is paid before there is any distribution to a spouse. If the assets are distributed outside of a probate proceeding to a beneficiary then the right to the assets are determined by the instruments that establish the beneficiary.... Read More

Since your mother lacks the capacity to sign a Power of Attorney for Health Care the only way for you to obtain unquestioned authority to make healthcare decisions is to open a guardianship (sometimes called a conservatorship) proceeding and seek appoint as guardian of the person for your mother. Ass a legally appointed guardian of the person you would have authority to make medical decisions.... Read More

They need to consult an estate planning attorney to advise them what is appropriate in their circumstances. There is no one-size-fits-all estate plan; it is different for everyone. It is a process, not a sheaf of papers, and begins with a consultation to determine their circumstances. The costs can range from a few hundred dollars to prepare simple wills, to several thousand dollars to prepare and fund a family trust and execute other documents such as durable powers of attorney and advance health care directives.... Read More