Sunday, February 5, 2017

Why prepare a will or estate plan?

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: 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.