Trust and Estate Planning Services.  One of the most pressing legal needs for families is proper Estate planning.  From very small, to very large, estates, the correct estate planning can organize your assetts and ensure their proper distribution upon your death.

There are several documents you will need to familiarize yourself with before beginning the planning process.

Basic Will.  The most common document in estate plans, the basic Will directs exactly how you want your assets divided upon your death, and names the individuals who are to recieve them.  Many cite as a drawback of the Will that it must be "probated" after your death, which means it must go through a court process before your assets can be distributed as you have directed.  Though in some instances probate can be a long, drawn out process, for many estates probate is fairly simple, and the basic Will is a good, inexpensive choice for a lot of people.

Living Trust.  The basic Will is often contrasted with the Living Trust, another vehicle used to dispose of your assets upon your death.  The Living Trust establishes a Trust, during your lifetime, which holds all of your assets.  You are the trustee while you are living, and are able to handle all of your property in the same way you always have.  You designate successor trustees in the trust document that act in the event of your death or incapacitation.  And, just like in the basic Will, you spell out how you want your assets divided and to whom they should be distributed.

One of the primary differences between the basic Will and the Living Trust is that unlike a Will, with a Living Trust, in most instances, your heirs do not have to go through the probate process.  Because the property is owned by the trust, and not you, when you die, the successor trustee is immediately able to take control of your assets and distribute them as you have directed in the trust document.  And, unlike a Will which is filed at the courthouse and becomes public record, your trust remains entirely private and is available to only a select few individuals for review.

Another major benefit of a Living Trust for individuals with taxable estates is the ability of a properly structured trust to double the amount of assets you can pass to your heirs without incurring estate tax.

There are certain drawbacks of a Living Trust, however.  First, for married couples, transferring your property into a Living Trust means you will no longer be able to hold your real property as a Tenancy by the Entirety.  Tenancy by the Entirety is a form of home ownership available only to married couples and it affords a certain degree of protection from creditors of one spouse attaching the home and forcing its sale.  There has been talk of legislation in Illinois which would allow married couples to hold property in a living trust and still retain Tenancy by the Entirety protection, but, as it stands now, that is not permissible.

Another drawback for some couples is that you do have to make minor changes in ownership.  You no longer hold the property in your own names, but in the names of the trusts.  That means you have to divvy up the property and transfer each spouse's portion into each spouse's trust.  For many couples, this is not a real problem, because they already have separate checking accounts, savings accounts, etc... But, for some couples who hold all of their assets jointly, this can seem like a drawback.  For such individuals, I often recommend a "stand-by" trust, which is discussed below.

Pour-over Will.  The Pour-over Will is an accompanyment to the Living Trust.  It functions to "catch" any assets you have not re-titled in the name of the Trust, and "pour" them over into the trust upon your death.  Say, for example, you buy a small piece of real estate, and neglect to have it titled in the name of the trust.  Upon your death, the pour-over will directs that any assets you have title in your name should be transferred to the trust, to be distributed by the trustee according to your trust document.  In this way, you do not have to go through the entire probate process just to handle one asset that was left out of the trust.

Stand-by Trust.  A creative use of the Living Trust and the Pour-over Will is the Stand-by Trust.  A regular Living Trust is drawn up, but instead of immediately transferring all of your assets into the trust, you leave your assets titled in your own name.  Upon your death, probate only need be opened to "pour" your assets into the trust, and then the trustee is able to distribute the assets as usual.  This technique can help avoid the second drawback of the Living Trust I cited above, because you can retain your current method of holding assets, and still achieve some of the benefits of the Living Trust.  Note, however, that if you hold an asset as "Joint Tenants with Rights of Survivorship" the asset will pass immediately upon your death to the joint owner, and will not be poured into the Trust.

Durable Power of Attorney.  The Durable Power of Attorney names an agent to act for you, during your life, should you become incapacitated and unable to handle your own financial affairs.  The Durable Power of Attorney terminates upon your death.

Two other documents every person should consider are The Health Care Power of Attorney and Living Will, which I discuss indepth on the page, Living Wills and Health Care Powers of Attorney in Illinois.