Choosing an Executor for Your Estate

executorEstate planning is arguably one of the most important things a person will do during their entire life, and as such, everything matters. The slightest discrepancy may be attacked, and your wishes may not be honored if your estate is not set up and administered properly. Perhaps the most important choice you must make while estate planning is picking your executor, who can ensure that your wishes are carried out as you prefer and act on your behalf.

Responsibilities of an Executor

A person who has been named executor in Illinois has 30 days following the death of the testator in which to either submit the will for probate or refuse the appointment. The responsibility of managing another’s estate is significant, and with that in mind, it is important to pick the right person. The instinct for many is to choose their spouse, but this is not always the best choice, especially if you are of similar ages. He or she may be elderly and/or ill when the time comes for them to assume the role.

Whomever you choose must be able to fulfill all of the duties of the office. These include:

  • Informing the relevant authorities and your creditors of your passing, and in some instances, your family;
  • Paying any outstanding debts incurred in your lifetime by you or your estate;
  • Ensuring your spouse’s or family’s well-being until the estate is settled (i.e. paying rent or mortgage payments, bills, etc.);
  • Paying estate taxes;
  • Hiring the right attorney to help probate the estate; and
  • Dealing with any questions or concerns of putative beneficiaries during the process.

Generally speaking, an executor has a fiduciary duty to act appropriately toward all involved parties while safeguarding the assets of the estate.

Who Can Serve as Executor?

An executor has responsibilities that may last years and be quite complex in nature. Illinois, like many other states, does have restrictions on who may serve, though there are not as many as there are elsewhere. To serve as an executor, a person must be over the age of 18, a U.S. resident (not necessarily a citizen), and they must not have been judged to be incapacitated in any way by a court. They must also be free of any condition that would require guardianship.

It is recommended that you choose an executor who lives near you, but it is not absolutely required. However, you should be aware that if you do choose an out-of-state executor, they may be asked to post a bond by the probate court, so as to increase the chances of their successful oversight of the estate.

A Wheaton Wills and Trusts Attorney Can Help

If you are confused or conflicted about who to choose as your executor, you are not alone. The best solution for most is to consult an experienced estate planning attorney. Contact one of our knowledgeable DuPage County estate planning lawyers to discuss your situation today. Call 630-665-2500 and schedule a confidential consultation at Stock, Carlson & Duff LLC.



Nursing Homes Using Guardianship over Residents for Bill Collection

nursing homes using guardianship, Wheaton Estate Planning LawyerA recent report in The New York Times should serve to reinforce just how crucial it is for people to have estate planning documents in place while they are still healthy and able to make decisions for themselves, including a health care power of attorney and a financial power of attorney.

According to the report, several nursing homes are using the legal tactic of seeking guardianship over residents in an effort to gain control of the residents' finances, essentially using the guardianship petition as a method of bill collection.

Although laws do allow for nursing homes to file for guardianship in cases where a resident is incapacitated and is either being taken advantage of financially by other relatives, or where there are no relatives or anyone else appointed to protect the person's interest, the report cites case after case where nursing homes filed petitions for guardianship, but with no reason—the facility was trying to gain control of a resident's money.

In one documented case, a 95-year-old woman, who had savings of $240,000, was placed in a nursing home after being in a rehabilitation center for treatment because there had been a fire at her apartment and she was unable to go home. The woman did not have any relatives. At one point, her physician declared that she was not competent to make financial decisions. However, the nursing home in which she resided ignored her physician and told the woman that she needed to give them a check for $50,000, which she did. It was not until sometime later, when the woman refused to write any more checks to the nursing home, did the nursing home apply for guardianship. The judge who oversaw the guardianship case appointed a third-party as guardian and instructed the guardian to investigate and proceed with possible criminal charges against the nursing home for financially exploiting the woman.

In Illinois, residents of nursing homes are protected under the Nursing Home Care Act. Under the law, "a resident shall be permitted to manage his own financial affairs." This law also applies to residents who have already appointed someone as legal guardian, or at the very least, has given someone power of attorney to manage their affairs.

If you have yet to sit down and make plans for your future, it is essential that you contact an experienced Wheaton estate planning attorney to help ensure that your assets are protected in the event you become incapacitated. Make sure you are the one who gets to decide who should have legal control over your medical, personal, and financial care. Call 630-665-2500 today.

Do-it-Yourself Estate Planning Can be an Expensive Mistake

do-it-yourself-estate planning, Wheaton estate planning lawyerIllinois residents work hard so they can enjoy the fruits of their labor once they retire and so they are able to provide for their families after they have passed. They want to ensure that even when they are no longer here, their loved ones have the financial assets to improve their quality of life. However, several costly estate planning mistakes can be made, and they can seriously impact an estate plan.

One of the most common estate planning errors is the belief that it can be done without the assistance of a qualified estate planning attorney. There are a multitude of online companies that offer estate planning forms for people to download and prepare themselves. However, the problem with these "do-it-yourself" documents is that there are specific laws, in each state, that govern estate planning. Therefore, if a person is not cognizant of the details of these laws, the simple "do-it-yourself" will or trust can end up being very costly—more costly than what an attorney would have charged to do it correctly to begin with. This is especially true when drawing up trusts, which many people utilize in order to help alleviate the tax implications that can sometimes come along with inheriting money.

Trusts do play an important role in estate planning and various financial planners advise people to not leave a large sum of money to heirs. Instead, set up trusts for them. This can be especially helpful to those who have an adult child with serious emotional or substance abuse issues. Additionally, setting up a trust which includes provisions, and appointing someone as a trustee, will prevent the funds from being spent quickly and inappropriately.

People who own their own businesses often forget to include the businesses in their estate plans. However, there are important plans that a business owner should have in place in the event of his or her death. For example, will the owner's life insurance cover the estate taxes when he or she dies?

Another issue that may need to be addressed is how a business will be divided among an owner's children. What happens when one child works at the business and the others do not? Not having a firm plan in place can end up causing your children to take a hard financial hit, and may additionally cause a family feud if all of the siblings do not agree how the business should move forward.

Finally many people do not update their estate plans when major life events happen, such as marriage, divorce or death. This is especially true when there should be a change of beneficiaries to go along with these events.

If you need to draw up new estate plan documents, or update the ones you currently have in place, please contact an experienced Wheaton estate planning attorney today to discuss what options will work best for you and your family.