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WILLS, LIVING WILLS AND DURABLE HEALTH CARE POWERS OF ATTORNEY

Why You Should Have a Will
Probate
Avoiding Probate
Letters of Office
Will Formalities
Living Wills
Durable Health Care Powers of Attorney

People make Wills for various reasons. Some considerations include saving on estate taxes, to give direction covering burial arrangements, to disinherit someone, to leave family heirlooms to someone, to establish trusts for relatives who cannot manage money, and to provide for guardianship of minor children or dependent adult children. People who own their own business can provide for the continuation of that business through a Will.

Why You Should Have a Will

It is important that everyone has a will. Without a will the laws of Illinois determine who gets your property. If you die without a will the Illinois law requires that your estate passes:
If no children - spouse gets everything.
If there are children - spouse gets one-half and children share in the remaining one-half of the estate.
No spouse - children share equally in the estate.
If no spouse or children - parents and siblings share with parents getting a double share.
If none of the above - nieces and nephews share equally.
If none of the above - grandparents or the descendants share.
If none of the above - nearest relative inherits the entire estate.
If none of the above - the State of Illinois receives the entire estate.

Probate

Probate is the legal system in which assets in the deceased person's name alone are gathered, debts are paid and then the remaining monies are distributed to the heirs if no will, or to the devisees if there is a will. This is done under the supervision of a judge. Small estates (less than $50,000) can be distributed without court supervision. The probating of an estate may be public record, unless unsupervised administration is permitted by all the people taking under the will.

Avoiding Probate

There are ways to avoid probate. If all property is held in joint tenancy the property passes to the surviving joint tenant outside of the probate estate. Some caution must be taken here to avoid tax problems.

A living trust can also be a means to avoid probate. It is private - there is no public record. All property is placed in a trust and upon the death of the grantor, the property passes to the named beneficiaries. Again caution is needed. If some property is not put into the trust, it will need to be probated. A Will may be needed to put all remaining property into the trust. If it is a revocable trust, you keep control over the property but estate taxes will have to be paid. If it is an irrevocable trust, you will have no control over the property but there may be less or no estate tax upon your death.

Letters of Office

If you do not have a Will the court will appoint an administrator, order the sale of all property, or order the sale of the business. Your spouse may have to go into court every year to account for how the money was spent. When your children turn 18 years of age, they can do whatever they want with the money. If your spouse remarries, the new spouse may end up inheriting your property.

Will Formalities

You can write your own Will, but you must be careful. There are numerous technicalities that must be followed.

Videotaped Wills are not acceptable in Illinois, but they can be used to show that the person was competent at the time the Will was made.

A Will can be revoked at any time. A new Will can be made or a codicil executed to add to or change the Will. Because tax laws change and people change a Will should be reviewed approximately every five (5) years.

Living Wills

As medical technology becomes more advanced, it becomes possible to keep more people alive longer by artificial means, even when there is no quality of life. Illinois Law is now attempting to keep up with medical science with the Living Will, Durable Health Care Power of Attorney (DHCPOA), and the Health Care Surrogate Act.

The purpose of a Living Will is to allow individuals the right to control decisions relating to their own medical care, including having death delaying procedures withheld or withdrawn in instances of a terminal condition. The person must be 18 years of age and of sound mind. It must be signed by the person and witnessed by two people.

Durable Health Care Powers of Attorney

A Durable Health Care Power of Attorney allows individuals the right to control all aspects of their personal care and medical treatment, including the right to decline medical treatment or to direct that it be withdrawn even if death ensues. A DHCPOA goes further than a Living Will. While both allow for the individual's intent concerning death delaying procedures and both require the individual to be of sound mind and signed and witnessed by two people, the DHCPOA provides for the following:

  • donation of organs
  • refusal of autopsy
  • disposition of remains (i.e. cremation, burial)
  • appointment of an agent to make decisions of some or all medical treatment if the individual is unable to do so for themselves
  • continuing or terminating food and water
  • naming a person to be guardian of the person if one becomes necessary.

Both documents can be amended or revoked at any time. If the individual is competent, his or her wishes supersede the document. Pain medication can be given to the individual as needed under any circumstances. A copy should be given to the individual doctor. If the doctor cannot comply, notice must be given to the individual immediately.

Because many people do not have either of these documents, Illinois enacted the Health Care Surrogate Act. The purpose of this Act is to establish reasonable procedures for making decisions to end life-sustaining treatment of an individual who lacks the ability to make decisions and has a terminal illness or condition. It allows another person to act on behalf of the patient to stop or continue life-sustaining treatment.

The surrogate must try to follow the patient's wishes if they are known or can be determined. If not, the surrogate must make a decision based upon the best interest of the patient. The act is designed for family members to make these decisions for a patient rather than the Courts.

Finally, there is a new Federal Patient Self-Determination Act. This Act requires hospitals, nursing homes and medical institutions to advise patients of their rights concerning Durable Health Care Powers of Attorney.

 

This pamphlet is for informational purposes only. You should consult with an attorney regarding your specific situation.
© Copyright 2012 Shimberg and Crohn, P.C.

 

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