Transfer on Death Deed Now in Illinois

On January 1, 2012, the Illinois Uniform Real Property Transfer on Death Act (Act) goes into effect. The Act permits owners of real property in Illinois to execute a deed which will allow for the property to be transferred to a designated beneficiary upon the owner’s death. If the property is owned jointly, the deed will transfer ownership upon the death of the second owner to the designated beneficiary.

The Transfer on Death Deed varies from its counterpart in other states in that it requires the deed to be executed with the formality of a Last Will and Testament. The deed must be witnessed by two witnesses, notarized, and the witnesses must attest that the person signing the deed is of sound mind. The deed requires certain language such as that it is not effective until the death of the owner and must be properly recorded before the death of the owner. Continue reading »

So You Are a Trustee

Your parent, aunt, grandparent, or friend has appointed you as trustee of their trust. You may have briefly glanced at the document 10 years ago when the trust was formed and never gave it a second thought until you get the call that the trust creator has become incapacitated or has died.

What do you do? What are your duties as trustee? What information are you supposed to give the beneficiaries? What are the steps to collecting assets? What bills do you pay? Are you supposed to file tax returns?

Serving as a trustee can quickly become overwhelming. Timing issues regarding notice to the beneficiaries and reporting to the beneficiaries your activities are often the most difficult for a trustee to know without the help of legal counsel. An accountant and financial advisor can also be valuable resources during the initial trust administration period.

Whether you are currently serving as trustee or know you will be serving as trustee in the near future, a consultation regarding your legal responsibilities as trustee is critical.

The duties of a trustee may include: Continue reading »

Lifetime Trust or Outright Distribution – How to Leave Your Assets to Your Beneficiaries

There are several ways you can leave your children (or other beneficiaries) your assets upon your death.

One option is an outright distribution. I call this the “here’s your inheritance” method. Upon your death, after payment of expenses and debts, your child receives their full share of the assets outright.

A second option is the staggered distribution method. This method gives your child a percentage of their inheritance at certain ages, dates, or events. A typical example is upon your child turning 30, he or she will receive one-third of their inheritance, at age 35 another third, and final distribution of the entire amount at age 40. In the meantime, your child would typically receive distributions of the principal and income of his or her share for needs such as a house down payment, educational expenses, or even a monthly stipend for living expenses. Another example would be an incentive based trust. With this trust, your child will receive 1/2 of his or her share if he or she graduates college and the remaining distribution if he or she maintains full-time employment for at least two years. Continue reading »

Being an advocate for your child with special needs

Information and strategies abound regarding techniques that should be implemented by parents of a child with special needs to advocate for the child’s education rights, therapies, and treatments. Building a network of resources and support is vital to becoming a parent advocate.

A great tool is available from the Advocacy Group Autism Speaks. They have put together a 100 day kit to help families with a new diagnosis of autism.

Parents also must quickly learn how to navigate the complicated educational laws governing children with special needs. Wrightslaw and other disability advocacy websites offer families a plethora of information regarding the Individuals with Disabilities Education Act (IDEA 2004) and a child’s right to a Free Appropriate Public Education (FAPE). Continue reading »

Electronic Estates – Keeping a Record of Your Assets

With the advent of electronic banking and e-statements, the face of our financial recordkeeping has changed over the past few years. Along with this change has come the limited knowledge of and access to your financial information. This is great for security now – but it can cause problems for your family when you are no longer around if you do not plan ahead.

Prior to online banking, when a person died the family could easily discover assets of the departed through statements delivered via “snail mail” – the U.S. mail. Bank statements would arrive in the mail on a monthly basis. Most brokerage statements would arrive at least quarterly. Worst-case scenario would be the annual statement from a life insurance policy, but there was usually a previous year’s statement available for reference.

Today, most people do their banking online and access retirement account/401(k) information online as well. They receive statements online with notifications via email, and dividends are electronically deposited. Continue reading »

Frequently Asked Questions: Revocable Living Trust

What is a Revocable Living Trust?

A trust is an agreement that determines how a person’s property is to be managed and distributed during his or her lifetime and also upon death.

A revocable living trust normally involves three parties:

• The Settlor – Also called grantor or trustor, this is the person who creates the trust, and usually the only person who provides funding for the trust. More than one person can be the settlors of a trust, such as when a husband and wife join together to create a family trust.
• The Trustee – This is the person who holds title to the trust property and manages it according to the terms of the trust. The settlor often serves as trustee during his or her lifetime, and another person or a corporate trust company is named to serve as successor trustee after the settlor’s death or if the settlor is unable to continue serving for any reason.
• The Beneficiary – This is the person or an entity that will receive the income or principal from the trust. This can be the settlor (and the settlor’s spouse) during his or her lifetime and the settlor’s children (or anyone else or a charity the settlor chooses to name) after the settlor’s death.

A trust is classified as a “living” trust when it is established during the settlor’s lifetime and as a “revocable” trust when the settlor has reserved the right to amend or revoke the trust during his or her lifetime.

How is a Revocable Living Trust Created?

There are two basic steps in creating a revocable living trust. First, an attorney prepares a legal document called a “trust agreement” or a “declaration of trust” or an “indenture of trust” which is signed by the settlor and the trustee. Secondly, the settlor transfers property to the Trustee to be held for the benefit of the beneficiary named in the trust document. Continue reading »

Important Tax Options for Estates of Those Who Passed Away in 2010

For trustees and personal representatives of 2010 estates, new legislation passed on December 17, 2010, provides two options for tax treatment of assets from an estate created in 2010.

The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 made sweeping changes to estate taxes for 2011 and 2012 and retroactively made several changes for estates in 2010.

The new estate tax law allows an estate created in 2010 to elect out of the estate tax for 2010 which results in the application of the modified carryover basis rules.

Option One – Modified Carryover Basis

Elect out of the estate tax and complete IRS Form 8939 to allocate which assets in the estate will have their basis increased to the value of the assets as of the decedent’s date of death. This allocation is limited to $1,300,000 for non-spouse beneficiaries and $3,000,000 for a spouse beneficiary.

The executor of the estate is given the authority to complete the Form 8939 and make such allocations of the basis. There are also additional increases for capital loss carryovers and other losses. The proposed allocation must be provided to the beneficiaries prior to the election.

The basis step-up still does not apply to property which is considered “income in respect of a decedent” which includes traditional IRAs and 401(k)s.

Option Two – Five Million Dollar Estate Tax Exemption

Elect to subject the estate assets to estate tax and obtain a basis increase for all assets of the estate. The estate tax exemption amount was increased to $5 million for 2010 at a rate of 35% tax for assets over the $5 million. Continue reading »

The Importance of Care Plans & Beyond

A care plan is written information about how to best care for your child’s health needs. A care plan may include specific medication your child takes and the time they take it, particular foods your child should avoid, how often your child gets physical therapy, or what to do for your child in an emergency. For families with children who have special needs, a care plan can convey vital information to caretakers. This may include doctors, nurses, therapists, emergency medics, teachers, child care providers, respite providers, grandparents, friends, and neighbors. Continue reading »

Powers of Attorney v Guardianships

When your child turns 18 years old, he or she is considered a legal adult. As an 18-year-old, he or she has the ability to contract, to make decisions such as whether he or she wants to continue to go to school, and whether a parent can be present in an IEP meeting. Further, because of HIPAA privacy rules, a doctor can no longer communicate with the parent regarding that child’s health issues. For families with a child who has special needs, they must make some critical decisions in order to protect their child who is turning eighteen. Two options for these families are seeking guardianship through the court or having the child sign a power of attorney, if appropriate.

Guardianships are a process through the court by which persons are declared incapacitated to the extent that they are unable to make their own decisions regarding medical care and placement, and an individual is appointed by the court to act in their stead. Since the court regulates the guardian, this process can become a costly affair and is a much longer undertaking than a power of attorney, especially if the appointment of a particular guardian is contested.

Conservatorships are formed whenever persons are declared unable to handle their own assets. If a guardianship is granted, a conservatorship will also typically be granted. If the person who was declared incompetent by the court has assets, the court will monitor the appointed conservator and will require annual reports regarding the use of the assets by the conservator to be filed by an attorney.  In order for a guardianship or conservatorship to be set aside, the incapacitated person must petition the court to have his or her legal rights restored and must demonstrate the previously incapacitated person is no longer in need of a guardian or conservator.

Continue reading »

U.S. Court of Appeals Decision Favors Student Who Brought IDEA Claim

The United States Court of Appeals, in March 2010, voted in favor of specialized children in the case, Compton Unified School District v. Addison. This case upheld the Individuals with Disabilities Education Act (IDEA), which ensures children with disabilities have access to a free appropriate public education (FAPE).

In Compton, Addison, the student, received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. The school counselor promoted her to tenth-grade, despite her low performance.

During the fall semester of her tenth-grade year, in 2003, Addison failed every academic subject. Addison’s mother was reluctant to have her child tested, and the School District did not require it. Instead the School District referred Addison to a third-party counselor who recommended the School District assess Addison for learning disabilities. The School District ignored this directive and promoted Addison to the eleventh-grade.

In September 2004, Addison’s mother explicitly requested an educational assessment and Individualized Education Program (IEP) meeting from the School District. The assessment took place and Addison was found eligible for special education services on January 26, 2005, which was during the spring of her eleventh-grade year.

Addison and her mother brought the claim against the school district seeking compensation for the School District’s failure to identify her needs and provide her with a free appropriate public education.

The school district argued two issues: the first is that the IDEA’s written notice procedures limit the jurisdictional scope of the due process complaint procedure and the second is that they did not receive “clear notice” of the availability of an administrative hearing in “child find” cases. The court rejected the school district’s first argument contending that the Supreme Court has already addressed this issue. The Supreme Court has stated that a conservative reading of the IDEA would leave parents without an adequate remedy if a school district fails to identify a child with disabilities. Regarding the second issue, the court additionally struck down the school district’s argument of “clear notice” finding the IDEA clearly allows complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child.”

The court’s decision in this case provides fuel for other parents to seek compensation for a school district’s failure to identify children with disabilities in the educational system.