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Caught in the Undertow!

Posted by Mona O'Connor | Jun 14, 2020 | 0 Comments

Many people love to spend part of their summer vacation at the beach, enjoying the ocean and sunshine. This is especially true this year given the recent stay-at-home orders that we had to abide by due to the COVID-19 pandemic. But there may be unseen dangers that are crucial for beachgoers to keep in mind. For example, the undertow is a current of water, often quite powerful, below the surface, that is moving away from shore when waves are approaching it. It can easily knock a smaller person off balance and could be dangerous for those who are not strong swimmers. As a result, it is crucial to know if your particular beach experiences undertows, to check for and abide by posted warning signs of rip currents or undertows, and to take steps to protect family members from this danger. Likewise, there are a number of dangers associated with failing to put a comprehensive estate plan in place and, therefore, your family members could feel as though they are drowning after you pass away.

State law, not you, will determine who gets your money and property. If you pass away without a valid will and/or trust, by default, much of your property will go to the individuals (heirs) spelled out in Illinois' intestacy law in the proportions set forth in that law. In effect, the state statute makes a will for you if you fail to do so. This may not seem like a major concern until you consider the potential consequences. The following are several situations in which loved ones could be disinherited if you do not have a will and/or trust naming them as beneficiaries:

  • Children from a first marriage who have been adopted by a stepparent, or children who have been adopted by other family members or an unrelated person, may no longer be legally recognized as your children under state law. As a result, even if you still love and care for them, they will receive nothing from you unless you specifically include them in your will or trust.
  • Children conceived after one parent's death using assisted reproductive technology, such as frozen embryos, may not inherit from that parent under intestacy statutes, many of which do not address the rights of posthumously conceived children.
  • In addition, although children of unmarried parents can always inherit from their mothers under state law, they may have to produce proof of paternity to inherit from their father under an intestacy statute. 
  • A significant other with whom you have spent your life is unlikely to receive anything under state law if you are not married. Although state law does allow a spouse to receive some proportion of your estate, if you are not legally married to your partner—or in a legally recognized civil union or registered domestic partnership, he or she will inherit nothing from you under the intestacy laws. 

There are many other situations in which intestacy statutes are unlikely to achieve your wishes. For example, a special needs child may need a larger inheritance amount to pay for future care than an adult child who is not disabled. In addition, when a parent and a child are estranged, intestacy laws provide an equal distribution to that estranged child regardless of what the parent wanted. Intestacy statutes provide no exceptions for these special circumstances. 

You can ensure that everyone you wish to benefit from your estate will by providing specific provisions in your will and/or trust.

An outright gift under state law will not protect your heirs' inheritance. Outright gifts made pursuant to an intestacy statute provide no protection for your spouse or children, which is often problematic. Once they receive a distribution from your estate, the money and property they have received may not benefit them at all if they have creditors or ex-spouses. In addition, if a child is irresponsible with money (i.e. a spendthrift), that child could quickly squander the money and property you have worked a lifetime to save. These common problems can be addressed through the creation of certain types of trusts. There are a number of possibilities to consider, but two of the most commonly used trusts in these situations are those that distribute money and property in certain percentages at specific ages and discretionary trusts.

Creating a trust with distributions at specific ages will help to ensure that your beneficiaries will only begin to receive distributions at an age when you believe they will be sufficiently mature to responsibly handle the assets. Also, because the gifts are made in increments, you can rest assured that your beneficiaries will not be able to quickly exhaust their entire inheritance. The money and property held by the trust will be protected from the beneficiaries' creditors until it is distributed to them.

The trustee of a discretionary trust has the authority to make distributions to beneficiaries but is not required to make them. Because the beneficiaries do not have a legally enforceable right or entitlement to receive any of the funds in the trust, the money and property held by the trust are protected from their creditors until a distribution is made. The trustee of this type of trust should be someone you have confidence will make wise decisions regarding when and if distributions should be made since that person will have a significant degree of control over the trust's funds.

Failing to create a trust could mean that your estate will be tied up in a lengthy court-supervised probate process. Instead of being immediately available to provide for the financial needs of your family members, your money and property will have to go through the probate process, which could last more than a year even if your estate is not very complex. This is true even if you have a will, as probate can only be avoided if you die with no accounts or property solely in your name. Once you have executed your estate plan, you will need to transfer ownership of your accounts and property into a trust, if you created one, or by naming a beneficiary for your accounts and other eligible property. 

It is important to keep in mind that if you have minor children, money or property that they inherit under state law or a will cannot be immediately distributed to them (nor should it be). Rather, because minor children are not legally able to control property, a conservator will need to be appointed by the court to manage the inheritance for them until they reach the age of majority under state law, at which point it will be distributed to them outright. Locating, screening, and appointing an appropriate person (who may not be someone you would have chosen) is a time-consuming process for the court. Further, the money and property you want to be used to care for your children will not be fully available to benefit them until the administration process concludes. Lastly, while the conservator will be supervised by the court, there is no guarantee that the court-appointed individual will use the money and property for the benefit of your children in the way you would have wanted.

Allow Us to Help You Care for Your Family

A carefully designed estate plan is like a life vest for your family in a rough sea. Losing a family member is never easy, but we can help you put plans in place that will provide you with the peace of mind of knowing that your grieving family will not be overwhelmed if you die. Give us a call to set up an appointment to talk about the best estate plan to provide for the needs of your family and loved ones. If you prefer, we are happy to meet with you over the phone or by videoconference.

About the Author

Mona O'Connor

Mona L. O'Connor joined the firm in 2008 and is currently a partner with O'Connor Law Offices. She is a J.D., C.P.A. and her primary areas of practice include estate planning and trust administration.


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