Saturday, May 25, 2013
My Long Awaited Return to Blogging
It's been awhile. I recently redesigned the website for my firm, Law Offices of Robert H. Glorch. We're at www.illinoisestateplan.com. As part of the redesign, we've added a blog directly on the website at www.illinoisestateplan.com/blog. I'll be writing there frequently about Illinois estate planning and estate administration topics. I will also keep
clients and readers updated on changes and developments effecting trusts
and estates – tax changes, new Illinois statutes and court decisions,
news events and comments on articles and publications. Check it out!
Monday, February 26, 2007
"Ghetto Wills"?
This weekend's Chicago Sun-Times has an article written by Mary Mitchell using Anna Nicole's Smith as a reminder to get your estate plan in order. A good idea, of course.
One particular passage is a bit concerning, however. Mitchell writes:
"If you can't afford a lawyer right now, start out with a "ghetto will," by writing down your wishes and having your signature on the document notarized at the local currency exchange."
This "ghetto will" sounds a lot like what we call a "holographic will" -- a Will that is handwritten by the testator and not witnessed by others. In some states, these can be valid under certain conditions. In Illinois, they never are. A Will is not a Will in Illinois unless it is signed, witnessed and attested to in the manner proscribed by statute. In many ways, a "ghetto will" may be worse than nothing at all.
One particular passage is a bit concerning, however. Mitchell writes:
"If you can't afford a lawyer right now, start out with a "ghetto will," by writing down your wishes and having your signature on the document notarized at the local currency exchange."
This "ghetto will" sounds a lot like what we call a "holographic will" -- a Will that is handwritten by the testator and not witnessed by others. In some states, these can be valid under certain conditions. In Illinois, they never are. A Will is not a Will in Illinois unless it is signed, witnessed and attested to in the manner proscribed by statute. In many ways, a "ghetto will" may be worse than nothing at all.
Friday, February 23, 2007
To Trustee Or Not To Trustee
Kiplinger's Personal Finance Magazine has an article in its March 2007 online edition entitled "In You They Trust". The article discusses factors to consider when deciding whether to agree to serve as trustee as well as some tips for those that take the job on.
My favorite first piece of advice for a new trustee or executor: read the document(s). One of the first things we go over in an initial meeting with a new client serving as trustee or executor is a careful review of the terms of the trust or will (particularly the dispositive and discretionary terms). If there is any confusion or ambiguity, it is best to spot and deal with as early as possible.
My favorite first piece of advice for a new trustee or executor: read the document(s). One of the first things we go over in an initial meeting with a new client serving as trustee or executor is a careful review of the terms of the trust or will (particularly the dispositive and discretionary terms). If there is any confusion or ambiguity, it is best to spot and deal with as early as possible.
Monday, February 19, 2007
Estate of Anna Nicole Smith: Estate Planning Lessons
Anna Nicole Smith probate litigation – why does this sound so familiar? The latest revelation in the Anna Nicole Smith Estate legal saga is her now public last will and testament. Smith’s Will is more notable for what it does not say than for what it does say. Shockingly, the Will does not name or appear to include any beneficiary other than her predeceased son, Daniel. Not only is no contingent beneficiary included, the 2001 Will states that Smith has “intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living or those hereafter born or adopted.”
When a trust or will fails to have any surviving beneficiary, the trust or estate will generally revert to the decedent’s legal heirs under the applicable state’s intestacy laws. However, Smith’s Will appears to also attempt (rather sloppily) to exclude all of these legal heirs (her baby daughter) from inheriting as well. This is an interesting (and avoidable with proper planning) legal question that no doubt will be tied up in litigation for years (discussed here and here). While this issue will likely not face the average person, there are a number of important estate planning lessons that can be learned from Smith’s Will and Estate:
1. Name contingent beneficiaries. Failure to consider contingent beneficiaries is #6 on my list of Top 7 Planning Mistakes. It is a common mistake to assume that you will update your estate plan if one of your beneficiaries predeceases you. Often, updating an estate plan is a difficult task when a loved one dies. And then there is the possibility of a common accident. A better approach is to consider and address the “what if” scenario for every one of your beneficiaries (and fiduciaries) when your plan is implemented. Does the share pass to the beneficiary’s children? To the beneficiary’s spouse? Back into the pot? And are there enough contingent beneficiaries named? If you die without named beneficiaries and you have no living heirs, your estate can escheat to the government. Your favorite charities may be a good choice for ultimate beneficiaries. Also, don’t forget to address these contingent beneficiary issues directly on your retirement accounts – if your retirement account reverts to your estate, tax deferral options for your beneficiaries will be extremely limited.
2. Update estate plan. I discuss when to update your estate plan here on our website. Birth, death and marriage (and a sort of marriage?) are important milestones to trigger a review.
3. Funeral and burial planning. Even if you prefer not to plan the specifics for your disposition of remains, you may appoint an agent to do that on your behalf. In Illinois, this can be done either through your agent under a Power of Attorney Health Care or in a separate Disposition of Remains document that is now available under Illinois law. This can help prevent the sort of ugly fight currently playing out over Smith’s final resting place.
4. Guardian appointments. While the legal drama involving Smith’s money will be interesting, the fight over Dannielyn’s custody may become the most contentious. The first step, of course, will be DNA testing which, in all likelihood, will tell us who the father is. However, that does not necessarily end the inquiry. The identity of the father is significant, but not conclusive to an adjudication of guardianship. The ultimate deciding factor in custody cases is always the “best interests of the child”. A court will typically find that being with the surviving biological parent is in the child’s best interests, but there are exceptions. If a judge deems that living with Stern is not safe, then custody may be awarded to someone else, even if Stern is the biological father. When writing a Will, you can, and should, indicate all preferences with respect to guardianship, including who you do not want to serve, but keep in mind that serves only as guidance for the court, and is not binding.
Another lesson from this Will is to have your estate plan carefully prepared by a qualified estate planning attorney. While the Will apparently was not the typical do-it-yourself mess, it appears that the drafting attorney was not an attorney that concentrates in estate planning.
Also interesting: While Howard K. Stern is not a beneficiary of the Estate in any way, he will likely make out alright. In addition to executor’s fees and possibly trustee’s fees, he has also been the litigating attorney all along for Smith in her $474 million battle over her late husband’s estate, a battle that will continue. If Smith (now her estate) ultimately prevails or settles, he will get a nice portion (1/3?) of that award as his attorney's fee.
When a trust or will fails to have any surviving beneficiary, the trust or estate will generally revert to the decedent’s legal heirs under the applicable state’s intestacy laws. However, Smith’s Will appears to also attempt (rather sloppily) to exclude all of these legal heirs (her baby daughter) from inheriting as well. This is an interesting (and avoidable with proper planning) legal question that no doubt will be tied up in litigation for years (discussed here and here). While this issue will likely not face the average person, there are a number of important estate planning lessons that can be learned from Smith’s Will and Estate:
1. Name contingent beneficiaries. Failure to consider contingent beneficiaries is #6 on my list of Top 7 Planning Mistakes. It is a common mistake to assume that you will update your estate plan if one of your beneficiaries predeceases you. Often, updating an estate plan is a difficult task when a loved one dies. And then there is the possibility of a common accident. A better approach is to consider and address the “what if” scenario for every one of your beneficiaries (and fiduciaries) when your plan is implemented. Does the share pass to the beneficiary’s children? To the beneficiary’s spouse? Back into the pot? And are there enough contingent beneficiaries named? If you die without named beneficiaries and you have no living heirs, your estate can escheat to the government. Your favorite charities may be a good choice for ultimate beneficiaries. Also, don’t forget to address these contingent beneficiary issues directly on your retirement accounts – if your retirement account reverts to your estate, tax deferral options for your beneficiaries will be extremely limited.
2. Update estate plan. I discuss when to update your estate plan here on our website. Birth, death and marriage (and a sort of marriage?) are important milestones to trigger a review.
3. Funeral and burial planning. Even if you prefer not to plan the specifics for your disposition of remains, you may appoint an agent to do that on your behalf. In Illinois, this can be done either through your agent under a Power of Attorney Health Care or in a separate Disposition of Remains document that is now available under Illinois law. This can help prevent the sort of ugly fight currently playing out over Smith’s final resting place.
4. Guardian appointments. While the legal drama involving Smith’s money will be interesting, the fight over Dannielyn’s custody may become the most contentious. The first step, of course, will be DNA testing which, in all likelihood, will tell us who the father is. However, that does not necessarily end the inquiry. The identity of the father is significant, but not conclusive to an adjudication of guardianship. The ultimate deciding factor in custody cases is always the “best interests of the child”. A court will typically find that being with the surviving biological parent is in the child’s best interests, but there are exceptions. If a judge deems that living with Stern is not safe, then custody may be awarded to someone else, even if Stern is the biological father. When writing a Will, you can, and should, indicate all preferences with respect to guardianship, including who you do not want to serve, but keep in mind that serves only as guidance for the court, and is not binding.
Another lesson from this Will is to have your estate plan carefully prepared by a qualified estate planning attorney. While the Will apparently was not the typical do-it-yourself mess, it appears that the drafting attorney was not an attorney that concentrates in estate planning.
Also interesting: While Howard K. Stern is not a beneficiary of the Estate in any way, he will likely make out alright. In addition to executor’s fees and possibly trustee’s fees, he has also been the litigating attorney all along for Smith in her $474 million battle over her late husband’s estate, a battle that will continue. If Smith (now her estate) ultimately prevails or settles, he will get a nice portion (1/3?) of that award as his attorney's fee.
Friday, February 16, 2007
Welcome to the illinoisestateplan.com blog!
Welcome to the blog site for www.illinoisestateplan.com, the website for the Law Offices of Robert H. Glorch. We are a two-attorney firm located in Palatine, Illinois with our practice concentrated in estate planning and estate administration. I intend to use this blog to discuss timely matters related to these practice areas. If you have specific topics you'd like me to write on, feel free to visit our website and send me a message request. Please note that postings on this blog should not be relied on as legal advice and if you need legal advice you are encouraged to retain the services of a qualified attorney in your jurisdiction.
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