Often when people consider an estate plan they are thinking
primarily of a will. In truth a basic
estate plan consists of a will, a property power of attorney, a health care
power of attorney and a living will.
These documents are important to alleviate certain questions that may
arise between an individual’s family and close friends regarding disposition of
assets, medical treatment options and who has the authority to make life
changing decisions on behalf of the individual.
A will is a document that lets a judge or other interested
parties know who you would like to leave your estate to and who you would like
to distribute those assets according to your wishes. If you die without a will your assets will be
distributed pursuant to the intestacy succession laws of the state of
Illinois. The primary persons affected
by this law are your spouse and children.
The intestate succession for a family is one-half to the spouse and
one-half divided among the children.
Most wills leave everything to the surviving spouse trusting that the
children will be taken care of once the surviving spouse dies. Further, if you have children and you pass
away without a will then the state may decide who will assume guardianship of
the children. However, by preparing a
will you may name who you would like to assume guardianship of your
children.
Wills do not take effect until you pass away. The remaining documents take effect when you
are incompetent or unable to make decisions regarding your property or your
health care. A property power of
attorney is a document that lets a judge or other interested parties know who
you have selected to be your agent and will manage your property while you are
disabled. Essentially
once you have become incompetent or unable to manage your own affairs your
agent steps into your shoes and acts as he or she believes you would act in any
given situation. Although the authority
of an agent is generally broad, your agent owes you a fiduciary duty to act in
your best interests to the best of his her ability. A property power of attorney can be revoked
by you if you have regained your ability to make decisions on your own behalf
or it can be revoked by a court if your agent breaches his or her fiduciary
duty to you. All powers of attorney are
revoked by operation of law upon your death.
A health care power of attorney is a document that lets a
judge, medical professional or any other interested party know who you have
selected to be your agent and will make health care decisions while you are
disabled. The most important aspect of
health care power of attorney is when the health care provider should cease
giving life prolonging treatment. By initialing
the appropriate paragraph in your health care power of attorney document you
give your agent the authority to deny life prolonging treatment if such
treatment would leave you in a vegetative state or the treatment is
controversial or if the benefits of such treatment are outweighed by the
burdens. A living will is an extension
of the health care power of attorney.
However, a living will does not require an agent and only takes effect
if you have an incurable disease or injury that is a terminal condition and
your death is imminent that is only avoided by death delaying procedures. In that situation a living will directs the
medical treatment provider to cease all death delaying procedures and to allow
you to die naturally with the administration of pain easing medication.
Properly preparing the documents mentioned above can
alleviated considerable hardship to your family and loved ones should an event
occur that renders you disabled or deceased.
Consulting an attorney to prepare these documents ensures that the documents
are prepared in accordance with Illinois probate law. Other than the documents of a basic estate
plan other estate planning measures such as a transfer on death instrument
recently enacted into law in Illinois and a revocable living trust may allow your
heirs to avoid probate costs and protect your estate by reducing estate and
gift taxes and protection from lawsuits and other creditors. A knowledgeable attorney can discuss whether
any of these advanced estate planning documents are right for you. For additional information please email: dennis.steeves@steeveslawfirm.com or call 815-979-4016.
While every caution has been taken to provide my readers with the most accurate information and honest analysis, the information on this site is for general information purposes only.
