Key Estate Planning Documents Every Illinois Resident Should Have

Estate planning is something everyone should do, regardless of age or wealth. Illinois law outlines clearly what each resident should have in writing to protect their assets and preserve their wishes. While estate planning may be something one can be concerned with later in life, these important documents will save many headaches that your family would otherwise face well after a person’s passing.

Last Will And Testament

Probably the first document most people think of when considering estate planning is a Last Will and Testament. By this document, you are allowed, while living in Illinois, to plan how your assets will be distributed after your death and also to name a guardian for minor children. In the absence of a valid will, the intestacy laws of Illinois provide how your property will be distributed. That means the court will divide your estate amongst your next of kin, which is probably not in concert with your wishes.

First and foremost, one should keep in mind that in order to make a will valid, it has to be properly executed. As the Illinois law provides for, the will shall be in writing, signed by the person making the will, and attested by two witnesses who cannot be beneficiaries under the will. The lack of these formalities may result in disputing or voiding the will.

Revocable Living Trust

Another important estate-planning document, especially for those intending to avoid probate, is what is called a Revocable Living Trust. This is because, in the state of Illinois, probate may take so much time and, at the same time, be quite expensive. A living trust helps you make sure that your assets are going to be transferred to your beneficiaries without going through probate.

It’s particularly helpful if someone has real property in more than one state, minor children, or beneficiaries who have special needs. A revocable living trust offers the flexibility to modify the terms at will during your lifetime or to revoke it in its entirety; many Illinois residents favor this option in maintaining their control over their estate.

Durable Power Of Attorney For Property

First, if you happen to become incapacitated, you will want an effective, Durable Power of Attorney for Property. Under 755 ILCS 45, a person may designate another person to make decisions regarding his property when they are no longer able to. Without this document, your loved one may have to initiate a court procedure in order to have a guardian appointed for you, which could be time-consuming and costly.

Your power of attorney agent may be granted the authority to handle bank accounts for you, pay your bills, and otherwise address financial concerns that you may have. You may choose to limit their powers, or you may grant them broad powers – the choice is entirely up to you and whatever fits your specific needs.

Healthcare Power Of Attorney

The Healthcare Power of Attorney allows you to appoint someone to make medical decisions on your behalf in case you cannot express your wishes. This document, under Illinois law, comes under the Illinois Power of Attorney Act, 755 ILCS 45/4. You will appoint an agent who shall be obliged to make decisions concerning your medical treatment, treatment options, end-of-life care, and any other health-related issue.

This means, in this case, that one cannot tell what will happen to them in terms of medical action. A doctor, or worst of all, a relative, may make the wrong decision for you. You ensure that whatever your wishes regarding your medical treatment are, that is what is carried out even when you cannot express it yourself by having a healthcare power of attorney.

Living Will

With a Living Will, one states their desire for treatment at the end of life. An individual may state if they desire or do not desire to be provided with life-sustaining treatment in the event of a terminal illness. This document falls under the State of Illinois under what is referred to as the Living Will Act of 755 ILCS 35. This document comes into effect only when one cannot state their will and is diagnosed with a terminal condition.

A living will ensures that the treatment wishes of an individual are made known to healthcare providers and family members who may disagree at a distraught time over their decisions.

Illinois Estate Planning Frequently Asked Questions (FAQs)

Why Isn’t A Will Enough In Estate Planning?

While a very important document, most of the time a will does not complete an estate plan. A will does not avoid probate nor does it provide for incapacity or end-of-life decisions. Other estate planning documents such as powers of attorney and trusts can be used to complete the coverage for all facets of your life.

Can I Avoid Probate In Illinois?

Yes, probate can be avoided by creating a Revocable Living Trust. If you transfer your assets into a trust, then upon death, they will be distributed to your beneficiaries without going to probate court. Still, even smaller estates that have less than $100,000 in assets are also able to use a simpler form of probate in Illinois.

Who Should I Appoint As My Power Of Attorney?

It’s important to name someone you fully trust because this person will have much power in handling your finances or making healthcare decisions when you can’t act on your behalf. You can name someone whom you consider responsible, good with money management, or who understands your healthcare desires.

When Can I Update My Estate Planning Documents?

You will want to revisit your estate-planning documents whenever you experience a significant life event such as marriage, divorce, the birth of a child, or the death of a beneficiary. And revisit your plan every few years to make sure it still reflects your wishes.

What If I Don’t Have A Healthcare Power Of Attorney?

Conspicuously absent from these rights, of course, is the right to self-determination. If you do not have a healthcare power of attorney, then your next of kin will make decisions regarding your medical care, or such decisions will be made by healthcare providers. The result could very well be decisions that are not what you would have desired, particularly at the most critical times.

Can I Amend My Revocable Living Trust After I Establish It?

Yes, generally you can amend or revoke your living trust at any time during your life, as long as you have the mental capacity to do so. Of course, this flexibility is the reason why many individuals consider a living trust in Illinois: because it can be adjusted and revised as their plan changes throughout the years.

What’s The Difference Between A Living Will And A Healthcare Power Of Attorney?

A Living Will provides your intentions for life-sustaining treatment if you have a terminal illness and you are unable to communicate. A Healthcare Power of Attorney permits you to appoint someone to make broader medical decisions about you if you become unable to do so, whether or not you are terminally ill.

How Does Illinois Address An Intestate Estate?

If you die without a will, Illinois’ intestacy laws-755 ILCS 5/2-1-control who will get your property. Generally, your property goes to your closest relatives, a spouse, or children. If no relatives are found, your property may go to more remote relatives or even the state.

Call Our Chicago Estate Planning Attorney To Receive A Free Consultation

If you have any questions about getting started or revising an existing plan, the seasoned lawyers at Orlowsky & Wilson can assist you. At our firm, we understand Illinois law, and we can help you develop a tailored plan to fit your goals. If you have not already begun planning, then now is the time. Contact our Chicago estate planning attorney at Orlowsky & Wilson by calling 847-325-5559 to receive a free consultation. Our firm serves clients throughout Chicago with offices in Lincolnshire, Northfield, and Chicago.

Updated as of July 2019
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