Estate Planning 10: Trusts vs. Wills

Today's topic is an examination of the difference between living trusts or otherwise known as "revocable living trust" and last will and testament.

Living Trust

A living trust is written agreement similar to a will that creates a smooth transition upon incapacity and death. Unlike a will, a living trust is "living" because it takes affect during your lifetime. A living trust assist you to plan for incapacity and has provisions, which enable you to set up a trustee in case you cannot make financial decisions for yourself. Furthermore, a living trust avoids probate court and is a private document unlike a will. A living trust creates a smooth process and a process where your beneficiaries can simply avoid court and avoid the costs and expenses of probate court.

Unlike a living trust, a will is public information and your neighbor has a right to view your will. A living trust is not a public document and your neighbor or friend does not have any rights unless they inherit under your living trust. Moreover, a will must undergo probate court because a court must supervise the administration of the inheritance process. This is important because probate court requires court filing fees, surety bonds (unless waived), and attorney's fees (typically). A will often times creates will contests because mailing out notices to beneficiaries results in beneficiaries that are unhappy with the distribution of assets. Therefore, unhappy relatives challenge the validity and substance of the will.

Sean Robertson is an estate planning attorney and founder of Robertson Law Group, LLC. Robertson Law Group, LLC is a wealth preservation law firm concentrating in wills and trusts planning, estate planning, asset protection, and probate and guardianship law. Sean Robertson can be reached at (312) 498-6080 or (630) 364-2318.

Will Contests: Six Months To Challenge

I received my first will contests today as an attorney. Unfortunately, one of the beneficiaries challenged the will one (1) day prior to the six month date. With a will contests, a beneficiary has six (6) months from the date of entry of the will into probate to issue a will challenge. In the will contests, the upset beneficiary is claiming undue influence and coercion. Basically, this means that my client persuaded her father to sign the will and give everything to her.

One of the reasons you should not do your own will is lack of experience. In this case, my client drafted her own will and had her father sign the will. Second, the father signed the will in the hospital, with possible medication. Third, it is a will, which is public information. A rule of thumb, a revocable living trust is the simpliest way to avoid a will contest. This case likely would not have a will contests if a revocable living trust was involved. A revocable living trust does not require notifying a disgruntled beneficiary about the existence of a will. A revocable living trust or otherwise called a "living trust" is a private document.

Sean Robertson is an estates and trusts attorney that concentrates in wills, trusts, estate planning, asset protection, and probate. Sean Robertson may be reached at 312-498-6080 or 630-364-2318.

Asset Protection for Police Officers and Detectives

Lately, I have been asked more questions about asset protection for police officers and detectives. Asset protection is a legal concentration, which is concerned about placing assets such as real estate, certificate of deposits, investment and vacation real estate, and other assets beyond the reach of lawsuits and punitive damages.

Asset protection is important for police officers and detectives because privacy is a main goal of asset protection. Often times, I met with police officers or detectives and their addresses are public record. This is a big no-no. A private land trust is a great mechanism to keep your own address secret. Keeping your property outside of your personal name is a basic asset protection strategy. It is important because a creditor or aggressive plaintiff often times will not sue you if they do not think that you have sufficient assets.

This past Friday, I was at the Circuit Court of Markham and had a criminal defendant that asked me whether I could represent him in a lawsuit filed by his police officer that arrested him for selling drugs. My answer was "No", but obviously this is a prime example of why police officers must protect their personal residences and assets.

Asset protection utilizes trusts, personal residence trusts, family limited partnership/LLCs and irrevocable trusts to protect one's assets. A personal residence trust is a trust that owns your house and/or any vacation or investment real estate. The title holder of the property is the personal residence trust. Thus, the title to the property is outside of your personal name. The beneficiary of the personal residence trust is typically an irrevocable trust or family limited liability corporation or family limited partnership. Liens and judgments do not attach against a personal residence trust because the property is outside of your personal name. Typically, a personal residence trust or otherwise known as a "private land trust" is not a full proof way to structure your real estate interests. There are ways to use a private land trust and make it a good aset protection tool.

Creating a family LLC/Partnership as the beneficiary of a land trust is one way to increase the asset protection of a private land trust. The family LLC/partnership is a mechanism where a police officer and their wife (if applicable) are the managing owners of the LLC. For example, ABC, LLC has voting and non-voting shares. Jim is a detective and Sue is Jim's wife, which is a teacher. Jim and Sue each own 1 percent interest in the voting shares of the LLC. As managing members or managers, Jim and Sue have the ability to control the Family LLC/partnership. Jim and Sue only have 1 percent interest in voting shares because they want minimum level of wealth in the non-voting shares. Jim and Sue and one other person take a total of 98 percent of the Family LLC/partnership as non-voting owners. The benefit of non-voting owners is limited liability protection. The liability exposure of non-voting owners is your initial contribution. For example, if Jim and Sue make each $250 initial contribution to gain 98% ownership of the non-voting shares of the Family LLC/Partnership, their maximum amount they may lose is $250 per person. Therefore, most of Jim and Sue's assets will be placed in the non-voting shares, which means that their non-voting shares become untouchable by lawsuits, judgments, and punitive damage awards.

The benefit of a family LLC/Partnership is that a creditor may not foreclose your Family LLC/Partnership. A creditor may only have a charging order against the Family LLC, which means that the creditor only gets the debtor (Jim)'s interest in the Family LLC/Partnership. As managers, Jim and Sue may elect to distribute the Family LLC's assets to each other. In real terms, Jim and Sue will not make any distributions and the creditors only have a tax liability. This discourages your creditor(s) from going after you. For maximum protection, Jim and Sue each will own either a family LLC, which will be managed by Sue or Jim and Sue will have their own irrevocable trust. An irrevocable trust is a trust that is unamendable and unchangable. Thus, Jim's interest will be managed by Sue or somebody else, while Sue's interest will be managed by Jim or somebody else. We can include a provision in the irrevocable trust where the trustee changes if a creditor has filed a lawsuit. We also can have a Trust Protector, which is typically an attorney that oversees this provision and makes a judgment whether the trustee should be replaced. This enables Jim and Sue to gain additional asset protection. It is more difficult to seize Jim and Sue's assets when Jim and Sue do not control their assets. Thus, we have a lot of mechanisms in place to protect Jim and Sue's assets from creditors. First of all, we can include additional measures if Jim and Sue want the additional protection, which will make their assets unavailable such as a mortgage or security interest. I have decided that I am going to write an Asset Protection Guide for Police Officers and Detectives. This guide will be more comprehensive and better explain asset preservation planning is simplier and easier terms.

Sean Robertson is an asset protection attorney that concentrates in estate planning, asset protection, and advanced planning. Sean Robertson can be reached at 312-498-6080 or 630-364-2318.

Will Contests

Today, I received a phone call from a potential will contests opponent on one of my clients. Unfortunately, for this unhappy beneficiary, she had six (6) months to bring a will contest from the date the will was admitted into probate court. Thus, it has been 6 months and 2 weeks and therefore, a will contest will not win.

A way to avoid will contests is to avoid doing a will. Earlier today, I spoke with a prospect from the State of Washington regarding wills and trusts. This particular prospect has seven (7) children and one of the children is constantly in litigation with her and her husband. I suspect that this client is fighting a former spouse over child support or other issues. For this family and many others, a will is an absolute no-no. It is a bad idea because one of the siblings will fight any will and end up costs the estate thousands of dollars in legal fees and costs. Wills encourage will contests because estate attorneys must mail out notices to all potential heirs even if they are not inheriting assets. Thus, the disinherited heirs get disgruntled and have no economic incentive not to challenge the will. In contrasts, a revocable living trust is a private document and is more likely to avoid litigation. With a revocable living trust, no attorney in their right mind would ever mail out any notice to anybody that does not inherit. This would be the poster child for stupidity. Sorry today because I obviously have jokes today.

Therefore, if you want a will contests, hire an attorney or do your will on legalzoom.com. If you want a smooth transition upon your death or incapacity, hire an estate planning attorney.

Sean Robertson is Principal and Founder of Robertson Law Group, LLC. We are estate and asset protection attorneys that concentrate in helping seniors, business owners, and middle class families. We are down to earth and have the ability to travel to you if you have mobility issues. We can be reached at 312-498-6080 or 630-364-2318.

Out of State Property & Wills

Yesterday, I spoke with a gentleman from Tennessee regarding wills and trusts. He owned property in Tennessee and Maine. After explaining to him the differences between wills and trusts, he fully understood why the trust make more sense. When you have property outside the state that you reside, a probate court procedure is required. For example, Sam owns property in Illinois and Florida. If he dies with or without a will, Sam must undergo probate court in Illinois and Florida. In contrasts, setting up an revocable living trust or living trust would enable Sam to avoid probate court and smoothly transfer the property to his beneficiaries without delay or court involvement.

What happens when you die and own property?

This morning, I was speaking with a business client who also owns his own home with his wife. In Illinois, when you die without a will, a state law called "intestate succession" determines who is the rightful heir of your estate. Yes, your loved ones must undergo a court process called "probate". Probate court typically takes 9 months to 2 years and higher to finalize. This court process is expensive because you must typically pay an attorney and your costs are excessive. More importantly, you cannot sell your property or your inherited property, without providing good time to a prospective buyer.

Second, if you have a will, you still must undergo the probate procedure. The will must be admitted to probate and must be mailed to all the potential heirs. This often times creates court challenges, which makes the probate court procedures more costly and time consuming. Additionally, with the economic challenges of today, your inheritance may be seized by your creditors or a divorcing spouse. In contrasts, a living trust or otherwise known as a "revocable living trust" is similar to a will. Unlike a will, a living trust will not be subject to any court proceeding. In fact, a living trust creates a smooth transition upon your death or incapacity. Unlike a will, there are no expensive attorney's fees and costs. Your estate may be administered in less than a week or thirty (30) days.

Sean Robertson is an estate planning attorney that concentrates in estate planning, wills and trusts planning, probate and guardianship proceedings, and asset protection law. Sean can be reached at 312-498-6080 or 630-364-2318.

Gary Coleman and Updating Your Will

I enjoyed watching Gary Coleman and A Different Strokes as a kid. Gary Coleman was a talented and funny actor. Unfortunately, Gary Coleman did this week. This blog is about the importance of updating your will or trust documents. Gary Coleman did not get the opportunity to update his will prior to his death. He likely had his ex-wife down as a beneficiary. There are a lot of divorcees that likely have not amended their will or trust or changed their beneficiaries.

You should update your will or trust every two (2) years. Your executors and trustees die and new children are born throughout the years. At the Robertson Law Group, LLC, we will provide you a free initial consultation. We can get all of your documents signed and funded within two (2) weeks.

We can be reached at 312-498-6080 or 630-364-2318. Check out our website at www.RobertsonLawGroup.com.

Probate and Estate Planning

Probate court is often times a feared court because it is expensive and time consuming. One is affected by probate court when they die with or without a will or an adult loses their ability to make healthcare and financial decisions for themselves.

Most people misunderstand that wills are excellent post-death legal strategy. In fact, a will must undergo a probate proceeding called probate. Thus, you must hire an attorney, pay court costs, and wait a minimum of 9 months to 2 years. In contrasts, setting up a trust or revocable living trust is a way to avoid a court proceeding and to avoid the pain associated with probate court. A trust is similar to a will because it distributes property upon a death. Unlike a will, a trust is an effective estate planning solution. There is no need for a court processs upon death and the estate administration is simple.

A trust also enables you to plan for an incapacity and designate a guardian for your children. A trust is an excellent legal strategy for planning your affairs upon your death.

Sean Robertson, Attorney at Law
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
Offices in Chicago and Naperville, Illinois.
Email: RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com

Economy and Estate Planning

Today, I was speaking with a fellow attorney from downtown Chicago. This attorney msde a comment that he would not attempt to counsel or draft a trust or a will. Why is this? Estate planning and wills often times involve real estate and tax issues and unfortunately, most attorneys are ill equipped to understand when your matter may be simple or more complex.

For example, I recently had a client that was married but her husband was disabled and unable to make decisions for himself. This simple situation is more complex because the estate planning attorney must understand medicaid eligibility and elder law. Thus, it is important to hire an attorney that has the proper qualifications because a simple mistake may costs you thousands of dollars.

In my conversation with this attorney, we discussed that the economy is getting better. I have personally witnessed estate planning increasing because the economy is getting better. For many individuals and families, estate planning is a serious but often neglected conversation. Estate planning is crucial because if you die with a will or without a will there are serious negative consequences.

If you die without a will, the State of Illinois will determine who should inherit your property. Furthermore, doing nothing will costs your family more money in the long-run. Often times, an accident can occur and you and your family are ill-prepared for an incapacity or family death. Combining the family death with the legal proceedings creates a difficult time period for your family members. This is further worsened because an ill-prepared estate plan causes severe family fights. These fights commonly occur with blended families such as step parents and children. There are natural conflicts which exist and inheritance and money matters threaten family harmony. These conflicts result in hurt feelings and thousands of dollars in legal fees and court proceedings that last years and longer.

Sean Robertson is an estate planning attorney that concentrates in estates and trusts, advanced estate planning, and asset protection. Sean can counsel you and your family on how to properly set up a realistic but effective estate plan. Sean Robertson can be reached at 312-498-6080.

Robertson Law Group, LLc
(312) 498-6080 or (630) 364-2318
Email: RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com

Why Standard Powers of Attorney are Good?

A couple weeks ago and last week, I was presented with two (2) powers of attorney for healthcare that were not standard short-form powers of attorney. Standard powers of attorney for healthcare and property are important. They are important because hospitals, physicians, and banks are accustomed to seeing them. This gives them ease about accepting them. Non-standardized powers of attorney cause concern because hospitals, physicians, and banks are afraid that may not be legal. Therefore, the important lesson of the day is to use standard powers of attorney as highlighted in the power of attorney statute in Illinois.

Why Wills Are Worthless?

The topic of estate planning is not a sexy topic, but one that must be addressed by individuals and families. A Will is a common myth among the U.S. Society. Everybody believes that a will is the way to distribute your assets upon your death. In fact, a will is not a good way to gift your assets upon your death.

First, a will does not avoid the court process called probate court. Probate court is the court that administers wills after a person has deceased. A will must undergo a court process called probate because it is required by law. This probate process takes a minimum of nine (9) months to two (2)years to complete if you are lucky. An attorney often makes between $1,500 to $5,000 on an average probate case plus costs. Costs include filing fees, process server fees, publication fees, and other fees. A will often times encourages disputes because an lawyer must mail out certified notices all the potential heirs. This leads to disputes because one heir may not be happy with the will. The will is a public document, which means that anybody has the right to view your will.

In contrasts, a revocable living trust or otherwise known as a "living trust" is not probatable if set up correctly. The living trust avoids all court proceedings because your assets are not titled in your personal name. They are titled in your living trust's name. The living trust has a trust agreement, which outlines your wishes upon your death. Thus, your assets get distributed per your wishes. Unlike a will, a living trust is a private document. It also is not a document that must go through the probate court process.

Sean Robertson is an estate, corporate, and asset protection attorney. Sean can be reached at 312-498-6080 or 630-364-2318 or via email at RobertsonLawGroup@gmail.com.

How Not To Leave Money To Your Son-in-law or Daughter-in-Law?

The number one concern that I often hear is that parents do not want their son-in-law or daughter-in-law to access their inheritance in case of a divorce. The divorce rate is this country exceeds fifty (50) percent. Many parents are concerned that their inheritance will be subject to their child's divorce proceeding. This is a valid concern. This blog will discuss how to not leave your money to your son-in-law or daughter-in-law.

A will does not protect your inheritance from a divorcing spouse. For example, Ida is a widow and dies at the age of 83 years old. Her daughter is 50 years old, Laurie, and her son is 45 years old, Jack. Her daughter is married to John and John and Laurie are going through a divorce. Ida leaves Laurie and Jack each $125,000 and fifty (50) percent of the family house in the Naperville, Illinois worth $350,000. The house in Naperville is paid in full with no mortgages. In this example, John, the divorcing son-in-law will be entitled to fifty (50) percent of Laurie's inheritance. The inheritance, which was meant for Laurie has a creditor, John, which is a threat to her inheritance. Therefore, a will is a bad instrument to protect against a son-in-law or daughter-in-law from getting access to your adult children's inheritance.

In contrasts, a living trust or otherwise, known as a "Revocable Living Trust", is an excellent vehicle to protect your adult children against a divorcing spouse. In a Living Trust, the Trustor or creator of the Trust can create a "spendthrift provision", which restricts your beneficiary's inheritance from being subject to a divorcing spouse or any creditor of your beneficiary. For example, using the above example, Laurie's inheritance would be protected against her divorcing spouse, John. Now consider, what if Laurie had a mortgage foreclosure case filed against her and she was getting an inheritance. With a living trust, her inheritance is protected. On the contrary, a will does not have a spendthrift provision, and a person's inheritance is subject to creditor's claims and divorcing spouses.

Sean Robertson, Esq.
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com

Top Five Simple Steps for Estate Planning

The first step for estate planning is to determine who you desire to inherit your assets. This is important because prior to speaking with an attorney, you should have a general idea of who are your beneficiaries.

The second step for estate planning is to identify who you will appoint as an executor or trustee. An executor is the person that administers a will upon the decedent's death. An trustee is a person that manages a trust agreement. Executor or trustees are important positions because they will have significant financial responsibilities. You should be prepared to have up to three (3) executors and trustees. This is important because your first executor or trustee may not be available or desire the position.

The third step for estate planning is to identify potential family conflicts that could occur. You should establish a practical and effective plan to address family conflicts. For example, if you own a house, what is the process for selling the home. If you have multiple children, your children may have different expectations than their other siblings.

The fourth step is research whether a will or revocable living trusts or living trusts is more appropriate for your situation. Typically, if you have a home, a living trust is better than a will. A will must undergo probate court, is public record, and is more costly in the long-run. It is more costly because probate court, attorney's fees, and court fees add up quickly.

The fifth step is having two (2) to three (3) witnesses and a notary public present while you sign your will or trusts. You should not have any witnesses that are inheriting under your will or trusts. Your notary public and witnesses should witness you sign your will or trusts.

In conclusion, estate planning is important because it families family conflicts, which if not managed effectively, are costly and destructive. Sean Robertson is Principal of Robertson Law Group, LLC. Sean Robertson can be reached at 312-498-6080 or 630-364-2318. Robertson Law Group, LLC has offices in Naperville, Chicago Ridge, and Naperville.

Resolving Family Disputes Over a Family Business

In a family business, business and personal relationships are intermixed and often times, hard feelings occur. Today and going forward, business succession planning for family-owned businesses is critical. The first concern for family businesses is how to transfer the family business to the next generation without tax liability (later article). The second concern is who should manage the family business as the new President/Chief Executive Officer. Parents often times find it difficult to pick, which son or daughter should take over the family business upon their retirement or death. It is a good idea for a business owner considering retirement to begin making critical succession plans. One of the ideas may be to slowly transfer the adult children into making more critical decisions for the family business. This enables the Parent(s) to determine, which adult child is the better leader and business person. The third concern is how to compensate adult children that are not active in the family business. By active, I mean that do not actively work day by day in the family business. If one adult child is expecting a profit's payment or bonus similar to owning shares of stock/membership interest than their interests contradicts the active adult child's interest. Going forward, it may be best to address this situation and what your concerns are. The key point is it may be better to have an adult child not active in the business inherit life insurance versus the family business. The purpose of this is to avoid family conflicts and create conflicts, which naturally will exists. A good part of estate planning is anticipating family conflicts that may arise and planning to avoid these conflicts.

In conclusion, business transfer planning is critical for family-owned businesses. Business and personal feelings get mixed up and family relationships may it difficult to make key business decisions. Good estate planning can help avoid family conflicts and disputes.

Asset Protection and Hulk Hogan

The basic point of this article is how Hulk Hogan got sued by a person who his teenage son hit with a car registered in Hulk Hogan's name. This personal injury lawsuit was a big lawsuit because the victim was injured in a severe way.

In this lawsuit, Hulk Hogan's personal assets were exposed because his car insurance coverage was too low. Generally, your car insurance coverage should be a million dollars if you have substantial assets. Plus, an umbrella policy is a good idea. The reason asset protection is important in this situation is because your teenagers may get in an accident and cause damages to another person(s). Unfortunately, insurance coverages can be inadequate or often times, insurance carriers deny claims. Neverthless, Hulk Hogan would have settled this matter for a much better settlement if asset protection had been established prior to a lawsuit. Asset protection increases negotiation leverage because your assets may not be seized in case of a lawsuit, or at least your personal assets are judgment proof.

Asset protection is a strategy of protecting one's assets prior to a lawsuit. Proper asset protection is not fraud and it combines trusts and business entities such as LLCs to maximize protection of personal and business assets.

Sean Robertson is Principal and Attorney of Robertson Law Group, LLC. Sean Robertson concentrates in Asset Protection, Estate Planning, and Corporate law. Sean Robertson can be reached at 312-498-6080 or 630-364-2318.

Wills for Seniors

This afternoon, I had a gentleman from Naperville call me for his mother who is currently in hospice. The family wants to put together a quick estate plan for their mother. This is a pretty common request. Unfortunately, many individuals and couples post-pone estate planning until the last minute.

Unfortunately, many law firms do not offer mobile services where they will visit the dying mother. Here at the Robertson Law Group, LLC, we are mobile and we do visit clients at their hospital, hospice center, or their location. Obviously, the first question that arises is a senior capable of making a will.

We obviously will evaluate whether there are any drugs that are being given to the client that would interfere with their ability to make an intelligent and voluntary decision. More importantly, it is important to respond quickly because days may not be available.

Sean Robertson, Esq.
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com

Preparing for Family Dispute Over Will

Preparing for a family dispute over a will is wise. Two days ago, I spoke with a prospective client about how they are having a dispute over who was a proper heir of a deceased person. At issue is whether a person named "Sue" (made up name) is entitled to a share of "John's" estate even though nobody from John's family knew of Sue. With this estate, the legal battle has been going on since 2008. A lot of money in attorney's fees and costs have been spent due to a estate conflict.

Unfortunately, will contests and estate matters are often highly contested. One should prepare for a family dispute because each family has conflicts that can cause family strife. Who is likely to have a family dispute? Second marriages with step children are the most likely will contests. Second, a will where one family member gets a disproportionate share of the estate at the expense of the other siblings. Third, estate plans, which are too complicated and difficult to interpret. Fourth, matters where one sibling lives at home with mom or dad and another sibling is more successful. Thus, what happens is one sibling wants the family home while the other sibling wants to sell the family home. With most wills or living trusts, no provision or thought is giving to this situation.

In conclusion, my simple advice is easy. Prepare in advance, so your family avoid family conflicts. Conflicts ruin families and cost thousands to hundreds of thousands of dollars. Living trusts unlike wills are a good option of decreasing the chance of a estate conflict or dispute. Living trusts provide privacy and there is no requirement of mailing out notices to disinherited heirs unlike probate court. I hope everybody has a great Spring day!

Sean Robertson, Esq.
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
RobertsonLawGroup@gmail.com

Why most attorneys fail to make good estate plans?

Today, I was at a client's house and an another non-estate planning attorney drafted a will for my client. The will was a pretty good document, but it did not address her practical concerns such as how her husband who has dementia would be cared for in case of her death. Secondly, her brother has a spending problem and she wants to leave an inheritance to him, but he will blow all the money. A solution is a living trust versus a will. With this living trust, we will empower the trustee to purchase an annuity, which will give the brother a guaranteed income for the rest of his life (upon her death). Third, her neighbor is a beneficiary of her six-flat building and has no relationship to her family. One of the concerns is that he would sell the building and her husband would have no where to go. She assumed that the husband would live with the neighbor at a new home. Instead, we have set up her trust where her husband can remain living in his house for the rest of his life. Furthermore, we are setting up a special needs trust for her husband's benefit. The non-estate planning attorney also did not think about qualifying her husband for medicaid. These are simple examples of why it is important to hire an attorney experienced with wills, trusts, estate planning, advanced estate planning, and asset protection.

Sean Robertson, Attorney at Law
Robertson Law Group, LLC
(312) 498-6080
RobertsonLawGroup@gmail.com

What is independent administration and probate?

Cook County, Dupage County, Kane County & Will County Probate

Independent administration and Probate

Independent administration is a type of probate case that is not monitored by a judge until the end of the case. There are two types of probate administrations. The first type is called Independent administration. The executor is empowered to make financial decisions without the authorization of a judge. These decisions include selling a house, filing a lawsuit, and paying out inheritances or settling claims. The second type of administration is supervised administration. This type of administration occurs when one of the heirs at some point objects to independent administration. Typically, supervised administration is more costly because a judge must approve all financial decisions such as distributions of cash, sale of real estate, and settlement of claims.

The Robertson Law Group, LLC concentrates in probate and guardianship matters in Circuit Court of Cook County, Circuit Court of Dupage County, Circuit Court of Will County, and Circuit Court of Kane County.

We can be reached at 630-364-2318 or 312-498-6080 or RobertsonLawGroup@gmail.com

Irrevocable Trusts and Asset Protection-Overview & Analysis

This is a memo prepared for me from my law clerk regarding irrevocable trusts and their effectiveness. I hope you enjoy it as a fyi. I believe they are a very effective tool.

Sean

Irrevocable Trusts and Asset Protection

In general, an irrevocable inter vivos trust or otherwise known as "Irrevocable Trust" is an effective way for an individual to protect his assets from creditors. This is because the assets are no longer in the control of the individual; rather, they are in the control of the trustee. The scene gets slightly complicated, though, when the settlor retains the right to receive income for his life from the trust.

In the case In re Brown, 303 F.3d 1261 (11th Cir. 2002), a Chapter 7 bankruptcy settlor-debtor received an inheritance from her mother and put the inheritance in an irrevocable trust with the proviso that she would receive a monthly income payment for her life. Id. at 1263. The settlor-debtor was the trustee, but her powers were limited to making investment decisions; she could not assign her income interest because of a spendthrift provision in the trust agreement. Id. at 1264. The debtor-settlor eventually filed for bankruptcy and sought to keep the trust out of her bankruptcy estate,

The Eleventh Circuit first articulated that under the Bankruptcy Code, if a restriction of the debtor’s interests is applicable and valid under non-bankruptcy law, then the restriction is effective and valid under the Code as well. Id. at 1265; 11 U.S.C. § 541(c)(2). In looking at Florida law, the court determined that spendthrift provisions are effective to keep creditors from reaching trust assets, but only if the beneficiaries of the trust do not have any power over the trust assets. Id. at 1265. When the beneficiary is also the settlor, though, the spendthrift provision is not valid against creditors and they can reach the trust assets that the settlor has an interest in. Id. at 1266.

In looking at Florida law, the court determined that assets within a spendthrift trust are not protected to the extent the settlor creates the trust for his own benefit, as opposed to the benefit of another person. Id. at 1266. The court noted that this is not a concept unique to Florida, and the court cited several other cases from various jurisdictions (e.g. Ninth Circuit, Florida bankruptcy court (applying New York law), Maine bankruptcy court, Florida bankruptcy court (applying Ohio law) and Texas Appellate Court) all reaching the same conclusion. Id. at 1267 n. 6.

Furthermore, this interpretation follows the common law of trusts. Scott’s treatise, The Law of Trusts, specifically distinguishes between trusts reserving an interest for the settlor and trusts reserving an interest for a third-party remainderman. Id. at 1267 (citing II Austin Wakeman Scott, The Law of Trusts § 114 (3d ed. 1967). This treatise also finds that when a settlor reserves a right or interest for himself, a creditor can reach that interest even if the trust says otherwise. Id. A creditor can reach this interest of a settlor-beneficiary even if the settlor was solvent at the time of creating the trust, and even if the settlor had no fraudulent intent. In re Brown, 303 F.3d at 1267.
So, without a valid spendthrift provision, an interest in a trust is a property right. Id. at 1268. Thus, a beneficiary’s right to receive income is a property right that a creditor can attach. Id. But, when this right to receive income is the only right a beneficiary-settlor has reserved for himself, then it is only this income that a creditor can attach. Id. A creditor cannot pierce the trust and reach the corpus (unless the creation of the trust was a fraudulent conveyance). Id.

In Estate of German, 7 Cl. Ct. 641 (1985), the court reached a similar conclusion. The settlor created six trusts, three for each of her two sons, and named both her sons the trustees of all trusts. The trustees had the power to pay the settlor any income or part of the principal as they determined necessary. Id. at 642. The issue was whether the settlor owed an estate tax or gift tax on the property she transferred into the trusts, and the court could only answer this by determining whether the transfer to the trust was a completed gift. Id. at 643. If the settlor’s creditors could have reached the assets under state law (Maryland law, in this case), then the gift was not complete and the estate tax applied; if the creditors could not reach the assets (because the settlor divested herself of all rights to possession and enjoyment of the property), the gift was complete and the gift tax applied. Id. at 643.

The court relied on a Maryland Court of Appeals case, Mercantile Trust Co. v. Bergdorf Goodman, which found that creditors’ rights in trust property depend on whether the property in the trust which is not distributed returns to the settlor or goes to a remainderman at the settlor’s death. Id. at 645. If the trust property goes to a remainderman, then the creditors cannot reach the assets because the remaindermen have a vested interest in the property, even if that interest is delayed. Id. But the creditors can reach the life estate of income the settlor receives. Id. This is because that income returns to the settlor and the remaindermen do not have an interest in the income.

Finally, it is important to note that just because a spendthrift provision fails, the entire trust does not fail. In re Brown, 303 F.3d at 1269; In re Goff, 812 F.2d 931, 933 (5th Cir, 1987). In In re Goff, Mr. and Mrs. Goff, the settlors, created an irrevocable trust containing real property. In re Goff, 812 F.2d at 932. Citizen National Bank had a judgment lien against the property, which it properly recorded in the county records. Id. The settlors filed for Chapter 7 bankruptcy and Citizen National Bank submitted a secured proof of claim based on their judgment lien. Id. The issue the court had to resolve was what type of title the debtors held in the real property in the trust: legal or equitable? Id. If the settlors had legal title, the creditors could attach their judgment lien to the real property. Id. at 933. But, if the settlors had only equitable title, then the judgment lien would not attach and the bank would only have an unsecured claim in bankruptcy. Id.

A valid trust results in the settlors holding only equitable title. The bank argued that because the trust contained a spendthrift clause restricting alienation, the entire trust was void from the beginning. Id. The Fifth Circuit rejected that argument and found the trust to be valid, even though the spendthrift clause is invalid for a self-settled trust. Id. Therefore, the court found that the settlors held only an equitable title in their real property and a judgment lien cannot attach to equitable title. Id. Therefore, the bank can only have an unsecured claim in bankruptcy.

What these cases make clear is that an irrevocable inter vivos trust may be an effective way to protect assets from creditors. However, if the settlor retains any sort of interest in the trust, such as income interest, a creditor can attach a claim to the income interest the settlor receives. Finally, spendthrift clause for the benefit of the settlor is an ineffective way to protect income interest, and it will likely be deemed void (even though the trust itself will remain valid).


Sean Robertson
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
RobertsonLawGroup@gmail.com

Trust Administration and Estate Planning

Today's blog is on an important topic, which often is ignored by most estate planning attorneys. Often times, we are quick to recommend that family members be given the trustee position upon your incapacity or death. A trustee is a person that is a fiduciary and is required to follow your written instructions. Yesterday, I had a mediation for my client, a trustee of her father's trust. Her brother had filed lawsuit against her individually and as trustee of her father's trust. The brother was alleging that his sister breached her fiduciary duty owed to him under her father's trust. Unfortunately, this brother and sister do not have a relationship any longer after the family feud over money. My law firm did not draft the father's estate plan nor give the trustee advice upon your dad's death. In fact, her dad had a simple trust to be administered. My client through grieven, health issues, and lack of education was ill-equipped to be a trustee. In liklihood, she spent her money taking care of her parents instead of properly using her father's trust to pay for his nursing expenses and his care expenses. Her father had dementia. Prior to his death, my client commingled her personal money with the Trust's money. This is a big "no-no" because a trustee is not supposed to commingle their personal funds with the Trust's funds. Unfortunately, for my client, her legal options were not good. She would lose at trial and face thousands of dollars of litigation costs and attorney's fees to prepare this case for trial. Thus, this case settled for $50,000. We did get her brother to agree to not enforce the judgment (finding of guilt) for $50,000 until my client gets age 62. This is the age when my client can get a reverse mortgage and pay off her brother.

The moral of this story is make sure your estate planning attorney has a simple but clear will and living trust document. Second, it should not read like a lawyer's manual because most likely an average american will be implementing it and not understand the document. Third, make sure your loved ones are actually up to the tasks and make their jobs easy. Fourth, if you have feuding siblings, do not put your children in a situation where they are going to feud. A good estate planning attorney should review all these matters and recommend a good solution.

Sean Robertson, Attorney at Law
Robertson Law Group, LLC
(312) 498-6080 or (630) 364-2318
RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com

Power of Attorney and Seniors

This morning, I am meeting with a prospective client and his daughter and her husband. We are going to talk about a power of attorney. There are two (2) types of powers of attorney. The first type is a power of attorney for property or otherwise known as "POA Property". A POA Property is where the senior appoints a trusted person (likely daughter in this case) to be his power of attorney in case he has incapacity issues. Therefore, the daughter is empowered to make financial decisions for her dad such as payment of bills, real estate taxes, among many other bills. The second type of power of attorney is a power of attorney for healthcare or otherwise known as "POA Healthcare". A POA Healthcare is where the father appoints a trusted person (likely daughter again) to make healthcare decisions for him if he is unable to make these decisions.

Unfortunately, a power of attorney is often insufficient because if nursing home care (assisted living, etc.) is required, the nursing home will demand a guardianship hearing. The power of attorneys are relevant to any guardianship hearing, but a revocable living trust is really good option with the powers of attorney. Therefore, one can avoid the necessity of guardianship court. Guardianship court typically costs $1,500 in attorney's fees plus costs in a simple case. This is true for the Circuit Court of Cook County, Will County, and Dupage County.

Sean Robertson, Attorney at Law
Robertson Law Group, LLC
312-498-6080 or 630-364-2318
RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com

Estate planning for Unmarried Couples

This morning I was at a meeting with other professionals and attorneys. The subject of estate planning for unmarried couples was raised. It should be noted that estate planning for unmarried couples raises opportunities and problems. The first problem arises when an unmarried or same sex couple has assets, which border the amount allowed by the federal estate tax. Currently, in 2010, the federal estate tax has no limit, which means that a person can decease with $3 million in assets in their estate and pay no federal estate tax. The annual amount of gift taxes, which avoid gift taxation is $1 million. With married couples, AB trust are common, which enable an estate planning attorney to shelter each married spouse's estate from federal estate taxation. In 2011, this amount will return to $1 million per spouse, which means most married couples can shelter around $2 million dollars if structured correctly prior to the federal estate tax being an issue. For unmarried couples, advanced planning is critical because otherwise, unmarried couples face a maximum estate tax in 2011 in the amount of fifty-five (55) percent. Thus, unmarried couples and same-sex couples face an urgent need to properly plan their estates. Furthermore, unmarried couples must pre-plan their estates because their family members will likely inherit their assets without a properly drafted will or living trust. For unmarried couples, a will is not a good option simply because of the liklihood of an estate or will challenge. With a will, an heir must go through probate court and pay excessive attorney's fees and costs prior to inheriting the deceased person's assets. With a living trust, one can avoid the complexity and costs of probate court. A properly prepared living trust is a private document and avoids probate court. For unmarried couples, this is a cost-savings and a reduction in possibly litigation expenses and headaches. For example, I currently represent an estate of a gay partner who had the title of a condo in his personal name. Upon his death, his partner had to face the death of his partner and had to move because his partner had no legal right to their shared condo. Therefore, a living trust could have avoided this situation.

The word of advice is simple. Estate planning is critical for same-sex partners and unwed partners. Estate planning is a necessary evil and is simple with the proper attorney. At the Robertson Law Group, LLC, we are non-judgmental and work with unwed couples and same-sex partners in designing a customized estate and asset protection plan.

Robertson Law Group, LLC can be reached at 312-498-6080 or 630-364-2318 or RobertsonLawGroup@gmail.com. Check out our website at www.RobertsonLawGroup.com.

Key words: same sex couples, same sex partners, wills unmarried, last will and testament unmarried, glbt estate planning, lgbt estate planning, trust and glbt estate planning.

Land Trust and Asset Protection

Illinois land trust are a good strategy to avoid liens and judgments. They also provide you privacy protection because the property appears to be in the Land Trust Company's name. Additionally, a Land Trust can designate who shall be the beneficiary of the property upon one owner's death. This is could be a private land trust may avoid probate court. It may avoid probate court because you can designate a beneficiary upon your death. Typically, a court procedure called probate is required when both spouses are deceased. However, with a properly drafted land trust agreement, the land trust agreement designates who the beneficiary shall be upon the owner's death. In today's litigation, a land trust is valuable because liens and judgments do not attach to your property. This is important because you can sell your house even though you have not satisfied the lien or judgment. Contact Sean Robertson for a free initial consultation. We have offices in Chicago, Naperville, and Chicago Ridge.

Robertson Law Group, LLC
312-498-6080 or 630-364-2318
RobertsonLawGroup@gmail.com

What is Estate Planning-Naperville and downtown Chicago

What is Estate Planning?

Estate planning is simply a legal concentration that plans for incapacity and death. Typically, this planning involves wills, pour over wills, living trusts, and powers of attorney for healthcare and property.

A will is simply a written document that disposes of one's property upon your death. A will is a on-death document meaning that it does not have any affect during your life. A pour over will is a type of will that combines with a living trust to make probate a simple process. A pour over will becomes a catchall strategy to assist an estate avoid the complexities of probate. For example, Sue deceased and had a beneficiary that deceased on her bank account and did not designate a successor beneficiary. Thus, a pour over will instructs an asset without a proper beneficiary designation to be transferred into your living trust.

A living trusts is a written instrument that plans for your incapacity and death. A living trust is "living" because it works during your lifetime and upon death. A living trust is designed to avoid guardianship court and probate court. Guardianship court is a court that hears claims of disabled persons. These claims are relevant when a disabled adult loses their capacity to make decisions. Powers of attorney for healthcare and property are important, but to avoid guardianship court, your assets must be titled in your revocable living trust's name.

Essentially, estate planning is the process of working with an individual or family and assisting them with a smooth transfer upon death, avoidance of usual family conflicts, and the planning of incapacity and death. Estate planning also is giving advice on how to properly structure your assets to apply for medicaid or assist you and your family in helping your grandchildren or children remain eligible for medicaid (state public assistance). Many special needs children need the financial assistance of the state of Illinois because the expense of taking care of a special needs child.

In conclusion, estate planning is important because incapacity and death issues destroy many families. In my experience, there is a price that people will or will not pay for their families. If your children or loved ones will get destroyed by your lack of planning, estate planning is a family value.

Sean Robertson, Esq.
Robertson Law Group, LLC
312-498-6080 (all offices) or 630-364-2318 (Naperville)
Locations in Naperville, Chicago Ridge, and downtown Chicago
RobertsonLawGroup@gmail.com


Key word: Living will, pour over will, estate planning, wills, trusts, living trusts, revocable living trusts, power of attorney for healthcare and property

Irrevocable Trusts and Asset Protection

Irrevocable Trust are a great asset protection strategy. An irrevocable trust is a type of trust that may not be amended. Thus, the person that is creating the trust is re-titling the asset (i.e. real estate) outside their name. Hence, this person does not have control over the asset. Due to a lack of control, your creditors should not be able to seize the assets in the irrevocable trust.

Yesterday, I spoke with a financial advisor that referred his childhood friend. This friend is 59 years of age and is involved in the real estate business. During the good years, we know that real estate was a great way to make a lot of money. However, right now real estate is a tough market. Thus, this friend is considering bankruptcy. Possible, if you are in a situation like this, there are other alternatives. The first alternative may be an irrevocable trust. You cannot hinder, shelter, or defer payment to creditors. Therefore, we must evaluate whether the fraudulent transfer doctrine prohibits you from making any such transfers.

The major point is irrevocable trust are great for asset protection. Unlike domestic asset protection trust that are questionable, irrevocable trust are solid. The big difference is with an irrevocable trust you give up control to a trustee. In contrasts, an domestic asset protection trust gives you semi-control and in my opinion, domestic asset protection trust are unlikely to work in the state of Illinois.

Sean Robertson, Attorney at Law (Tax)
Robertson Law Group, LLC
312-498-6080 (all offices) or 630-364-2318 (Naperville)
RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com

Key words: Trust, estate planning attorney, irrevocable life insurance trust, creditor protection, domestic asset protection trust, asset protection trust, wealth preservation, lawyer estate planning, power of attorney, poa, will, pour over will

Business Law and Succession Planning

Robertson Law Group, LLC is a wealth preservation law firm concentrating in corporate, estate and business planning, and asset protection law. We also practice in the area of commercial litigation with a concentration in working with new and distressed businesses. We help distressed businesses defend breach of contract lawsuits and provide asset protection advice for the business and shareholder and/or owners. We assist small businesses to incorporate their businesses and draft and counsel small business clients on S corporations, Partnerships, and LLCs. Because we concentrate in asset protection, this is our primary area of expertise. Often times, business owners are improperly structured for growth and liability purposes. We can assist you in buying and selling a business. We can also counsel and draft wills, trusts, and business related documents that protect you, your family, and your business assets. Business transfer and succession planning are critical.

Small Business Law
Drafting and counseling business clients on entity selection;
Drafting LLCs, Partnerships, and S corporations;
Buy sell agreements;
Non-compete agreements and bonus plans;
Business tax planning advice.

Wills, Trusts, Powers of Attorney, and Estate Planning
Drafting Wills, Living Trusts, Irrevocable Trusts;
Powers of Attorney for Property and Healthcare;
Special Needs Planning including OBRA Trusts and Third Party Trusts;
Medicaid planning

Asset Protection and Lawsuit Protection
Drafting Family LLCs and Partnerships for Asset Protection;
Planning against lawsuits and judgments;
Protection of family, vacation, and investment properties along with business assets;
Exemption Planning such as Homestead Exemption Planning, Personal Property exemption planning, and Citations to Discover Assets;
Citation to Discover Assets and Rules to Show Cause Court Proceedings
Defending Breach of Contract and Collection's Matters.

Sean Robertson graduated from DePaul University College of Law in 2003 while working full-time as a paralegal at Katz, Friedman, Eagle, Eisenstein, et al. Sean received his bachelor of science degree from University of Illinois at Urbana-Champaign in political science. Sean is married to Brenda Robertson and lives in Naperville, Illinois. Sean is a member of the Illinois State Bar Association and Chicago Bar Association and Leading the Way-Naperville Leads Group. Sean can be reached at 630-364-2318 or 312-498-6080. Sean also can be reached via RobertsonLawGroup@gmail.com or www.RobertsonLawGroup.com.

Keywords: Naperville business attorney, Lisle, Downers Grove, Plainfield, Entrepreneurial Attorney, Asset Protection, Wills and Trusts, Estate Planning, LLC Attorney, Incorporation Attorney.

Business Law and Estate Planning

Robertson Law Group, LLC is a wealth preservation law firm concentrating in corporate, estate and business planning, and asset protection law. We also practice in the area of commercial litigation with a concentration in working with new and distressed businesses. We help distressed businesses defend breach of contract lawsuits and provide asset protection advice for the business and shareholder and/or owners. We assist small businesses to incorporate their businesses and draft and counsel small business clients on S corporations, Partnerships, and LLCs. Because we concentrate in asset protection, this is our primary area of expertise. Often times, business owners are improperly structured for growth and liability purposes. We can assist you in buying and selling a business. We can also counsel and draft wills, trusts, and business related documents that protect you, your family, and your business assets. Business transfer and succession planning are critical.

Small Business Law
Drafting and counseling business clients on entity selection;
Drafting LLCs, Partnerships, and S corporations;
Buy sell agreements;
Non-compete agreements and bonus plans;
Business tax planning advice.

Wills, Trusts, Powers of Attorney, and Estate Planning
Drafting Wills, Living Trusts, Irrevocable Trusts;
Powers of Attorney for Property and Healthcare;
Special Needs Planning including OBRA Trusts and Third Party Trusts;
Medicaid planning

Asset Protection and Lawsuit Protection
Drafting Family LLCs and Partnerships for Asset Protection;
Planning against lawsuits and judgments;
Protection of family, vacation, and investment properties along with business assets;
Exemption Planning such as Homestead Exemption Planning, Personal Property exemption planning, and Citations to Discover Assets;
Citation to Discover Assets and Rules to Show Cause Court Proceedings
Defending Breach of Contract and Collection's Matters.

Sean Robertson graduated from DePaul University College of Law in 2003 while working full-time as a paralegal at Katz, Friedman, Eagle, Eisenstein, et al. Sean received his bachelor of science degree from University of Illinois at Urbana-Champaign in political science. Sean is married to Brenda Robertson and lives in Naperville, Illinois. Sean is a member of the Illinois State Bar Association and Chicago Bar Association and Leading the Way-Naperville Leads Group. Sean can be reached at 630-364-2318 or 312-498-6080. Sean also can be reached via RobertsonLawGroup@gmail.com or www.RobertsonLawGroup.com.

Keywords: Naperville business attorney, Lisle, Downers Grove, Plainfield, Entrepreneurial Attorney, Asset Protection, Wills and Trusts, Estate Planning, LLC Attorney, Incorporation Attorney.

We have locations in Naperville, Chicago Ridge, and downtown Chicago.

Guardianship Court and Seniors

Last night, I went to a Bolingbrook Chamber of Commerce and Romeoville Chamber of Commerce after hours networking session. I spoke with a gentleman active in the Lion's Club. He informed me and the table about how his mother and is family where involved in guardianship court for his elderly mother.

First, guardianship court is the court where disabled adults go when there is a question of incapacity. In this example, this gentleman's story his elderly mother contested guardianship and had spent $150,000 of the estate's money on this guardianship case. Furthermore, major decisions cannot be made without the permission of the court. This can make everyday decisions frustrating and expensive.

At the Robertson Law Group, LLC, we can counsel your family on how to avoid guardianship and probate court or how to navigate probate or guardianship court.
We can be reached at 312-498-6080 or 630-364-2318 or via email RobertsonLawGroup@gmail.com. Check out our website at www.RobertsonLawGroup.com

Sean Robertson is Principal and Attorney for Robertson Law Group, LLC. Robertson Law Group, LLC is a wills, trusts, estate planning, and elder law firm. We counsel clients and entities on how to better structure their estates, business interests, and personal property. In today's economy, it is increasing becoming important to avoid probate court and deal with creditor concerns.

Sean Robertson graduated from DePaul University College of Law in 2003 and concentrated his legal studies in the areas of taxation, corporate, and estate planning law.

Citation to Discover Assets-Exemptions in Naperville

A Citation to Discover Assets becomes relevant when a judgment has been placed against you or your entity in Illinois. A Citation to Discover Assets is essentially an interview process designed to see which assets can be frozen or levied to satisfy a creditor's judgment.

A Rule to Show Cause is a court order, which orders a debtor to be present at the court hearing. If the debtor ignores this court order, they will be placed in contempt of court. Contempt of court likely will include jail time and a possibly a civil fine.

There are several exemptions debtors can exercise in Illinois. Personal exemptions deal with art work, furniture, and bank accounts. In 2010, a debtor can claim a $4,000 exemption for personal property. Thus, a husband and wife that have a judgment may claim $8,000 as a personal property exemption. The homestead exemption is $15,000 in Illinois. A homestead exemption is when a person gets to claim their house as exempt from creditor claims up to the first $15,000 in equity. Hence, your mortgage company must get paid first, than any other liens must get paid prior to the creditor getting paid.

Sean Robertson is an estate, asset protection, and business planning attorney concentrating in wills, trusts, citation to discover assets, rule to show cause, breach of contract cases, and medical malpractice lawsuits involving individuals and entities. Robertson Law Group, LLC works with physicians, surgeons, nurses, builders, construction owners, self-employed individuals, corporate executives, and police officers for their asset protection legal needs.

Sean Robertson can be reached at 312-498-6080 or RobertsonLawGroup@gmail.com. Check out our website at www.RobertsonLawGroup.com.

Key words: Naperville, Westmont, Hinsdale, Dupage County, Western Suburbs, Lawsuit protection, asset preservation and protection, inheritance law, wills, trusts, powers of attorney (healthcare), and estate planning.

Guardianship Court and Seniors

GUARDIANSHIP COURT & SENIORS

Guardianship court is a court that administers court proceedings for adult disabled persons that are incapacitated. Seniors are living longer and health difficulties such as dementia and Alzheimer’s disease are affecting are friends and family.
Incapacity is when one is unable to understand the consequences of making financial or healthcare decisions for oneself. When our loved ones fail to designate individuals to manage their healthcare and financial decisions, a court called Guardianship court must make those decisions for disabled adults.
First, Guardianship court must determine whether a person has the capacity to make his or her own decisions. Typically, Guardianship court requires a physician to give their professional recommendation on a court form, which ask the physician several questions regarding a person’s ability to make healthcare and financial decisions.
Too often, we hear stories about how somebody we know or in our family have been deceived out of their real estate or money. Often times, seniors rely on close relatives when they make important financial decisions. In several instances, our family members breach our trust. One of the purposes behind guardianship court is to find a responsible adult that will manage your loved one’s finances and healthcare decisions.
In many states, a guardian consists of two types of guardian: guardian of the person and guardian of the estate. Guardian of the person is responsible for making healthcare decisions. In contrasts, the guardian of the estate assumes responsibility for making financial decisions. Guardianship court manages Guardians and makes sure Guardians are accountable for their handling of a person’s finances and healthcare decisions.
Guardianship court involves a lot of emotion and often times family’s conflict against one another. There are several documents, which can reduce family conflict. First, a power of attorney for healthcare is one of these documents and it states a person’s desire regarding healthcare choices such as whether they want blood transfusions or want to be resuscitated.
More importantly, a person designates an agent, which acts when they lack the ability to make their own healthcare choices and informs the agent how they desire their healthcare decisions to be made.
Often times, families want their agent to consult with the patient’s physician and family before making important healthcare decisions. The second important document is a power of attorney for property. A power of attorney for property chooses an agent (a person) that is responsible for managing their healthcare decisions.
In conclusion, a power of attorney for property and healthcare are important legal documents, which decrease the likelihood of family conflict and assist a senior.

Financial Tips-Wills and Trusts

Financial Tips from a
Wealth Preservation Attorney’s Perspective:
Part 1 of 2 part series

Often times, my clients ask for my financial advice despite not being a financial advisor. Seniors want an unbiased perspective and unfortunately, commissions make many financial advisors hungry to sell financial products versus assist seniors with their financial needs.
As an estate planning attorney, I have the opportunity to see a wide range of seniors. In my experience, I see several different types of wealth (or senior). The first type of senior is what I describe as a middle-class baby boomer family. Middle-class baby boomers typically begin at age 50 and up and include a husband and wife that have a college education with at least one adult child.
In my experience, this family has a two household income with a nice home Access to credit is vital to this family because they have a modest to high lifestyle. The strength of this family is their hard working ability and commitment to their family. Financial advisors often advise this family to buy more life insurance, increase their 401(k) offerings and savings. Thus, this family has large bills, which threaten their lifestyle upon retirement. My advice to this family is pay off all of your debt including mortgage debt prior to retirement if possible. Clients without any debt are my most financially secure clients. Pay cash for your cars and do not incur additional debt. If you cannot pay cash for the item, then my recommendation is do not buy it.
The second type of senior is a blue collar worker/family person (hereinafter referred to as “blue collar worker”) with a simple lifestyle. Often times, these clients have modest assets with little or no debt. The blue collar worker has lived in the same house for at least twenty (20) years, is married, and has a couple of children.
It is also possible they either live in the suburbs or a rural community. The blue collar worker is a hard worker and loyal. Their house is modest and they have paid off their house.
Due to their modest lifestyle, retirement is easier because their bills are easy to maintain.
Unfortunately, in today’s economy, many of these individuals are unemployed or underemployed. The key with this group is long-term health care insurance. Nursing home care can quickly jeopardize your retirement and family’s standard of living.
Long-term care insurance is a type of insurance designed to cover nursing home or at home care. Despite the high premium, it is absolutely necessary! Seniors are facing health issues and unfortunately, the blue collar worker is too well off to receive Medicaid a/k/a state nursing home assistance. Many seniors are selling their homes to qualify for Medicaid or if they qualify for Medicaid, than Medicaid has a right of reimbursement upon your death. This simply means that Medicaid will recover the amount of expenses incurred by you during your life time and your children will not get an inheritance.
In conclusion, a family’s wealth is measured like a business. A business is profitable only if its’ revenues greatly exceed its’ expenses. The higher your operating expenses such as your household bills, the more difficult it is to make a profit. The key to retirement is lower your expenses while increasing your revenue (or income). In the next Article, we will continue to this discussion.

Sean Robertson is a Wealth Preservation Attorney and Founder of Robertson Law Group, LLC. Robertson Law Group, LLC is based in Naperville, Illinois, a suburb of Chicago. Sean Robertson can be reached at 312-498-6080 or RobertsonLawGroup@gmail.com. Sean Robertson concentrates in Wills and Trusts, Advanced Estate Planning, Elder law, and Asset Protection.

Living Wills vs. Power of Attorney (Healthcare)

LIVING WILL vs. POWER OF ATTORNEY

A common question is what is the difference between a living will and a power of attorney. Simply put, a living will is often called an advanced directive or health care direction. A living will answers basic health care questions such as whether a patient wants feeding tubes to prolong their life or what type of treatments a patient wants if you suffer a terminal illness. Thus, a living will is a legal document that expresses your individual healthcare treatment plan.

A living will becomes effective upon your incapacity or your inability to direct your physician on how you want your healthcare decisions made. Therefore, a living will explains to your medical professionals how you want them to answer important medical questions. Often times, a living will and power of attorney for healthcare work in concert with one another. A power of attorney for property is critical because a living will is limited in its’ ability to predict your particular medical scenario.

In contrasts, a power of attorney for healthcare is a legal document that appoints a trusted person to manage your healthcare decisions when you cannot make your own decisions. Again, the key difference between a power of attorney for healthcare and living will is control. With a power of attorney for healthcare, you appoint another person to make your healthcare decisions when you are incapable to making these decisions yourself.

It is important to state your philosophy towards blood transfusions, feeding tubes, or enhanced life support among many other factors. In my experience, a person’s ethnicity, religion, and personal philosophy makes each living will and power of attorney unique.

In conclusion, a living will and power of attorney for healthcare are typically included in an estate planning attorney’s estate planning documents. Each state has different legal requirements, but often times, a proper living will and power of attorney for healthcare requires your signature to be notarized or witnesses to witness your signature in addition to the notary.

Sean Robertson is an estate and elder law attorney that concentrates in wills, trusts, estate planning and asset protection. Sean is available at 312-498-6080 or RobertsonLawGroup@gmail.com. Sean welcomes your questions for future articles
Sean Robertson is Principal and Wealth Preservation Attorney with Robertson Law Group, LLC, which has offices in Naperville and downtown Chicago, Illinois. Robertson Law Group, LLC is mobile and is happy to travel to you within the Chicagoland region.

Wills and Revocable Living Trusts

A will is simply a written agreement that explains who you want to inherit your property upon your death. A will also should have a guardianship provision, which explains who should be your guardian in case of an incapacity. Additionally, parents can explain who shall be the guardian of their children in case they are deceased. A will is simple and easy to implement. In the State of Illinois, one must have the will notarized along with two uninterested witnesses (witnesses that are not inheriting). Unfortunately, a will does not avoid probate court. Probate court is a court which determines who is the heir of property of the deceased person's estate.

A trust is a written agreement, which is a fictional person. A Trust is good for avoiding probate court and minimizing the impact of an incapacity. There are two major types of Trust. An irrevocable trust and a revocable trust. An irrevocable trust is a trust that may not be amended, altered, or changed. A revocable living trust is a trust that can be modified, changed, or altered.

Robertson Law Group, LLC
Naperville and downtown Chicago
312-498-6080 or 630-364-2318
RobertsonLawGroup@gmail.com
www.RobertsonLawGroup.com