Old Standbys

Will

A Will is the traditional form of estate planning.  With a Will, you arrange for someone, upon your death, to wrap up your affairs and distribute your remaining property based on your directions.  You can also designate guardians for your minor or disabled children.

To be valid in Illinois, a Will must be in writing and must be attested to and witnessed by at least two independent witnesses.  There are specific procedures for the execution of a Will, and the Will may not be admitted in the Probate Court if the procedures are not followed precisely.

Revocable Living Trust

A Revocable Living Trust is simply a written set of instructions for the management and distribution of your property.

The major difference between a Will and a Revocable Living Trust is that the Revocable Living Trust is effective immediately.  Since it is effective when it’s created and funded, it is instrumental in planning for the possibility of your incapacity from an illness or accident.

A Revocable Living Trust can be revised or revoked at any time prior to your incapacity or death.  There is no initial income tax effect when you create your Trust.  You can continue to use your own tax identification number for your Trust if you are the trustee.

Power of Attorney for Property

A Power of Attorney for Property allows your designated agent to make financial decisions and take financial actions for you.  There is a statutory form called the “Illinois Statutory Short Form Power of Attorney for Property.”  The statutory Power of Attorney is a “durable” Power of Attorney, which means that it is effective, even if you become incapacitated.  Some brokerage firms, banks, title companies, etc. have their own forms, but the statutory form should be accepted throughout Illinois.

A Power of Attorney for Property can be helpful if you are disabled and you have chosen not to create a Revocable Trust.  In that situation, the Power of Attorney can be used by your agent to pay your bills, manage your investments, sell your properties, if needed, and to make other financial choices for you.

A Power for Attorney for Property can also be used in conjunction with a Revocable Trust.  If you become disabled, but you haven’t had a chance to transfer your properties into your Trust, your agent can transfer your assets to your Trust for you.  Thereafter, your property will be managed by your successor trustee.

Power of Attorney for Health Care

A Power of Attorney for Health Care is the easiest way to control your medical care, if you cannot communicate with your doctors.  It is a statutory form which allows you to appoint an agent to make medical decisions for you.  Almost all Powers of Attorney for Health Care in Illinois follow the statutory form.

The powers are initially very broad, although you can limit your agent’s ability to make certain decisions.  For example, if certain types of procedures violate your religious beliefs, you can limit your agent’s ability to approve those procedures.

The Power of Attorney for Health Care also addresses the issue of life-sustaining treatments and end-of-life issues.  Based on the level of  authority you have chosen, your agent may withhold or remove life-sustaining treatments when appropriate.

Additional Documents

Assignment of Personal Property

An Assignment of Personal Property is used in conjunction with a Revocable Trust to transfer the ownership of the grantor’s tangible personal property (such as furniture, household items, artwork, collections) from the grantor to the trustee of the Revocable Trust.  By transferring the personal property to the Trust, the grantor will keep the personal property out of his/her probate estate and will be able to maintain privacy regarding the value and distribution of such items.

The Assignment will not be effective to transfer the ownership of items which have an instrument of title (such as a car or boat), or which have specific transfer procedures (such as stocks, bank accounts, etc.)

Appointment of Agent to Control Disposition of Remains

This document is used to express and define your wishes regarding the disposition of your remains.  If you wish to be buried in the family plot or if you wish to be cremated, you can direct that your agent do so.  You also have the option of allowing your agent to overrule your desire to be cremated.

An Appointment of Agent to Control Disposition of Remains is especially important to set forth your wishes and your choice of agent if you are single or if you wish to avoid a family squabble about your final resting place.

Appointment of Short-Term Guardian

This document can be used to appoint someone as guardian of the person of your minor child.  It can be effective immediately and can last for a period up to a year.  You can revoke the appointment at any time.

The Appointment of Short-Term Guardian can be used in the situation where your child is visiting with your parents in another part of the state.  The document will give them the necessary authority to get emergency medical care for your child or to enroll him or her in school.

Codicil to Will

A Codicil is simply an amendment to your Will.  It must be signed with the same formalities as your Will.  You cannot amend your Will by crossing out paragraphs or writing notes on your Will.

Designation of Guardians

Many people designate the persons that they wish to act as the guardians of their minor children in their Will.  Another option is to have a separate document in which you designate your choice for your children’s guardians.

1. If you and your spouses perish, there may be more urgency in appointing guardians for your children than dealing with probate of your Will.  In that case, it may be useful to have your Designation of Guardian available and in the hands of those designated, rather than having to deal with the executor of your Will and the Probate Courts.
2. It is much easier to change a free-standing Designation of Guardian, than to have a Codicil to your Will prepared.

Donation of Anatomical Gift

There are several ways in Illinois to make an anatomical gift, which is commonly called an organ donation.  The most effective way to specify an anatomical gift is to prepare a separate Donation of Anatomical Gift.

With this document, you can specify if there are special types of tissues or organs that you wish to donate.  You can also provide for a donation to a special recipient or organ “bank”.  If you wish, you can specify that your entire body is to be donated for educational or research purposes.

HIPAA Release Authority

One goal of the Health Insurance Portability and Accountability Act of 1996 (also called “HIPAA”) was to protect the confidentiality of your medical records.  Because of HIPAA, you now need to give your doctors specific authority to release your medical information.  The HIPAA Release Authority directs any physician, health care provider or insurance company to disclose your health information and medical records to your agent under your Health Care Power of Attorney.

Living Will

The term “Living Will” means different things in different states.  In some states, a Living Will can be an all-inclusive document relating to any health care directives and choices.

In Illinois, a Living Will is defined by statute to apply only to a narrow set of circumstances and is not a legally binding instrument.

In almost all circumstances, a Living Will in Illinois has been supplanted by a Power of Attorney for Heath Care.

Memorandum of Personal Property

This document is used to express your wish that certain items of personal property should go to a special individual.  Generally speaking, the Memorandum of Personal Property may not be legally enforceable.  However, it carries a strong moral imperative and indication of your preference.

If you are dealing with items of exceptional value or if you wish to eliminate any possible disagreements, you can make specific gifts of your items of personal property in your Will or Revocable Trust.

Trust Amendment

As you would expect from the name, a Trust Amendment is an instrument which changes one or more provisions in your Revocable Trust.  In order to insure that you really intend to amend your Trust Agreement, it may have specific requirements for an Amendment, which may include certain required language or certain formalities in the execution of the Amendment.

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