Tuesday, December 11, 2012

Another Probate Requirement

Jack already prepared a Petition asking to become the executor of his mother’s will and signed an executor’s oath and individual bond as required.  Now if he files those documents with the required attachments, the probate court will decide whether proof of the will is satisfactory.

If the proof of the will is satisfactory, the court will admit his mother’s will to probate, appoint Jack executor, and order that the clerk issue “letters testamentary” to Jack.  Then Jack must begin issuing the various notices required by probate.

Heirs (certain relatives defined by law) and legatees (people named to receive things in the will) must be given notice of the court’s order within 14 days.  For example, Jack’s sister Tammy must be given this notice, which tells her of certain legal rights to challenge the will or the court’s order. 

There is a way around the extra work caused by having to give formal notice.  Jack could have asked Tammy and the others who would need to receive the notice to sign a Waiver of Notice.  If all signed, Jack could simply have filed those along with his petition, sent the notices via regular mail and skipped having to later file proof in court that he sent the notices.

Advance estate planning can often minimize the burdens of probate or even avoid it.  For estate planning advice, call our office at 436-1996 for an appointment.  ©2012 Gruber Law Office

Tuesday, December 4, 2012

More Swearing For Probate

As we explained earlier, Jack’s Petition to the court to become executor of his mother’s Will required the names and information about certain of her relatives, her legal heirs. 

The probate judge is probably not personally familiar with Jack’s family and his mother’s history.  Yet the law requires that notice be sent to all of his mom’s legal heirs.  To assure that all ‘interested’ people know about the Will, the court procedures require Jack to swear yet again. 

This time he swears under oath to information about his family tree.  Jack’s mom was a widow with two children, Jack and Tammy.  In his Affidavit of Heirship document, Jack has to give enough genealogy in the court document to show that his list of relatives include the legal heirs. 

Why?  Because, roughly speaking, legal heirs are his mother’s nearest kin.  Illinois law says that if his mom died without any Will, they are the ones who would inherit from her probate property. 

Jack’s mom’s Will disinherits Tammy, leaving her nothing at all.  Of course, his mom could (and did) make that decision. 

But his sister might suspect his mother was tricked by Jack into signing that Will.  So she is likely very interested in the Will and the probate.  She needs to know about it as soon as it is underway, so if she can prove Jack’s supposed trickery, she can challenge the Will before all the property is gone.

For help with probate procedures or to plan your estate to avoid probate, call our office at (815) 436-1996 for an appointment.  ©2012 Gruber Law Office, Ltd.

Tuesday, November 27, 2012

Naming The Heirs

As the person his mother wanted as executor of her will, Jack has asked to be officially named the executor, otherwise known as the estate’s Personal Representative.

In his Petition, he broadly estimated the value of the probate property she owned at her death.  He also must specifically list certain of her possible beneficiaries. 

He must name all her ‘natural heirs’ as defined by the Illinois statutes, including her daughter, even though his mother specifically stated in her will that her daughter would not inherit anything. 

He must also include everyone she named in the will to inherit, called legatees, whether they’re related or not.  Some people, like Jack for example, are both her heir and her legatee, being her son and having been named in her will to receive things.

This list of heirs and legatees must include each person’s address, relationship to his mother, and identify their legal status. Most of us have the legal status of being a competent adult, but others are under a legal disability, so they may not act for themselves in legal proceedings.  The most common legal disability is being under 18, a minor.

For help with probate procedures or to plan your estate to avoid probate, call our office at (815) 436-1996 for an appointment.  ©2012 Gruber Law Office, Ltd.

Tuesday, November 20, 2012

It's Over - For Real

This election season (the several years long that it was) has been tough on our country.  It might be fair to say that we are not sure we even like each other anymore. 

We have certainly heard much criticism of our politicians, neighbors, society, and government.  Of course, some of the criticism is well deserved, making it harder to hear. 

At Thanksgiving, perhaps we can change our perspective for a moment to remember some of the common treasures we have. 

It is so very easy to take our freedoms and democracy for granted.  We not only have the right to freely explain what we think is right or wrong, we also have the well-grounded expectation that our leaders will actually heed the ruling we citizens make at our voting booths. 

Perhaps they won’t fully understand the message we thought we were sending, but they will in fact leave office and take office based on who won or lost in the election.  Looking at Syria and other countries, we see that this is no small thing.

When we pause to reflect this Thanksgiving, noticing the absence of political ads at long last and the fine food, we can also appreciate at least one of the many treasures of our citizenship.  As we ourselves give thanks, we and our staff wish you a happy and appreciative Thanksgiving.  ©2012 Gruber Law Office, Ltd.

Wednesday, November 14, 2012

Another Probate Requirement

Before he can be appointed to serve as executor of his mother’s Will, Jack must make a formal promise to the probate court.  He makes that promise by signing an executor’s Oath and individual bond.  In the Oath, Jack must swear that he will faithfully discharge the duties of being the estate’s representative. 

The Bond is essentially “putting his money where his mouth is” and pledging to the People of Illinois double the value of his mother’s personal estate to ensure that he will properly carry out the estate representative’s responsibilities. 

That is better than the alternative, which would require him to buy a bond from an insurance company for 1½ times that value.  Once the bond is in place, if Jack were to run off with the money, the insurance company would be on the hook to Illinois or instead successfully track him down to answer for his misdeeds. 

When he applies for coverage, the bond company would have to be convinced that he would have too much to lose to run off and keep the estate’s money, instead of doing things right.  If his mother hadn’t waived “surety bond” for him in her Will, he would have had to buy that insurance and swear to do the probate faithfully.

Estate planning can help eliminate unnecessary costs in probate and sometimes even avoid probate altogether.  To learn how your estate planning can help your heirs, call our office at (815) 436-1996 for an appointment.  © 2012 Gruber Law Office, Ltd.

Tuesday, November 6, 2012

What To Figure Out

As the person named to be executor, Jack has been getting organized about finding his late mother’s assets.  It’s clearly easier to do his job when he’s organized, plus in order to even be formally named the executor of her estate, he must have some information.

The probate court cannot name Jack executor until he asks to be named.  To ask, he must file a Petition to Probate Will and for Letters Testamentary, which is the official name for his request to be allowed to take care of matters as his mother wanted.

The Petition needs an estimate of the value of all real estate owned by his mother, any income expected from her real estate, and the combined value of her personal estate, which is everything else, like bank accounts, stocks, bonds, jewelry, and vehicles. 

Fortunately, even the probate rules realize that it can be impossible to have accurate estimates before being appointed with the legal authority to obtain the information from banks and stock brokers.  

Jack could make things easier by giving himself a huge range in his estimates – over $50,000 for the personal estate and for the real estate, with $0 for income from real estate since she lived in her home. 

Although probate has plenty of complications for even what seem to be simple requests for simple estates, some simplification is allowed. 

For help navigating probate procedures or to plan your estate to prevent your heirs from ever needing to learn about probate firsthand, call our office at (815) 436-1996 for an appointment.  ©2012 Gruber Law Office

Tuesday, October 30, 2012

How Much Today? How About Tomorrow?

As the person named to be executor of his mother’s Will, Jack is making a list of her assets after her death.  Later, he will get a taxpayer identification number for the estate - for income taxes and also possibly for another, less common, tax – the estate or inheritance tax, often called the death tax in political debates.

Jack must find out whether he needs to file an inheritance tax return.  Fortunately, because his mother died in 2012, he will not have to file that complex tax return so long as all her assets add up to less than $5 million, which Jack says he can guarantee.  Illinois’ 2012 inheritance tax uses $2 million as the minimum number. 

Jack should count himself ‘lucky’ to have those $5 and $2 million limits to think about.  Because, as crazy as it sounds, if his mother were to die next year instead, federal and Illinois estate taxes would be due if her assets were worth over just $1 million, which is not so rare.  

Why?  Unless Congress acts to change the limit, the higher exemption amounts will expire at the end of the year.

As we approach these elections, think of this kind of weird rule change a symptom of our politicians’ procrastination of hard decisions.  In 2010 after the mid-term elections, our lawmakers could not agree to extend the increases past these 2012 elections, so they just kicked the can a bit down the road. 

Jack’s journey into probate has just started, but figuring out whether there could be an estate tax due is crucial to know as quickly as possible.  If you are dealing with the after-death paperwork and finances of a loved one, please call our office to set an appointment for advice.  ©2012 Gruber Law Office, Ltd.

Tuesday, October 23, 2012

House Clean, But Not Quite In Order

As we wrote last week, since his mother’s death, Jack and the bank took his mother’s Will from her safe deposit box and filed it with the court.  As he had thought, her Will names Jack to be executor. 

Next, he should try to find all her assets, because he will need to list them and account for them to and any other beneficiaries, and maybe also to the court.  But it’s been a bit rough.

He found himself searching through all of her files and papers stashed in various places in her house, hoping he wasn’t missing anything important. His mother used several different banks for savings accounts and CDs.  She also had shares in several different mutual funds and held a few stocks.

The biggest trouble was trying to tell outdated, closed accounts or sold-off assets from those that are still current.  It would have been simpler if his mother had taken some time to keep a general list of her assets in one place. 

As part of helping you create your estate plan, our office prepares a notebook designed to help you put your own house in order by listing information that is easy for you to write down.  But it would probably not be so easy for your family to recreate that information after your death. 

Part of estate planning is putting your financial affairs into reasonable order.  Our estate plans include help to jumpstart your organization.  If you would like to get started on organizing your estate plan, just call our office at 436-1996 to ask for an Estate Planning Worksheet or to schedule an estate planning appointment. ©2012 Gruber Law Office, Ltd.

Tuesday, October 16, 2012

Open To The Public

After Jack and the bank officer found his mother’s Will in her safe deposit box, the bank filed it with the court clerk.  If Jack had found her Will at home, he would have been required to file it himself.  Your last Will is supposed to be filed within 30 days of your death.

It should be filed with the Circuit Clerk of the Court for the county of your residence at death.  The clerk charges no fee to file the Will, but probably will charge for any certified copies of the Will requested.

Those requests for copies can come from your family, heirs, friends, even reporters or just about anyone.  The files of Wills kept by the circuit clerk are public records open to the public.

So Jack’s mother’s decision to leave her daughter, Tammy, nothing at all in her will can be discovered by anyone who cares to look, which Jack knows is not how his mother wanted it.

She could have kept that painful decision private several ways, including using a living trust.  Then her Will could simply “pour” any assets remaining outside her trust at the time of her death into her trust.  The trust does not have to be filed and so her unequal distribution could have remained private. 

For advice about living trusts and other estate planning options, call our office at 436-1996 for an appointment.  ©2012 Gruber Law Office, Ltd.

Tuesday, October 9, 2012

Secret Deposit Box

When Jack visited his mother’s bank safe deposit box with her death certificate, the bank required one of its officers to accompany him to open the box.

He was told that the bank officer would look for her Will while he watched, so the Will could be filed with the court.  But he wasn’t allowed to look at or read the other papers in the box, even though it delayed his search for her property needing to be taken care of. 

And the bank insisted on filing the original Will itself with the court clerk but would give him a copy of it, since that will make the Will a public record anyway.

When he is later named executor of her Will in probate, he can take the court document showing him as executor to the bank to look at the rest of her safe deposit box documents.   

The simplest way his mother could have prevented this annoying delay would have been to list his name on the box.  If she’d had a living trust, she also could have used the trust’s name.  Then, no court order would be necessary to prove that Jack was allowed to see all contents of the box.  Instead, he would need only her death certificate and trust documents naming him successor trustee. 

Planning can prevent delays and problems for your family after your death.  Information about where your safe deposit box is located and taking care in naming people to access it can make a difference.  For advice regarding your own estate plan, call our office at 436-1996 for an appointment.  ©2012 Gruber Law Office, Ltd.

Tuesday, October 2, 2012

Tougher Than Needed

Jack’s mother’s death hit him hard, but now he is ready to figure out what he must do to tie up her financial affairs.  First, he visited her safe deposit box with a certified copy of her death certificate, a document prepared for him by his attorney, and the safe deposit box key he found in her files. 

Together with a bank officer, he found her last Will in the box and also noticed there were other papers he was not allowed to look at.

And he tried to figure out where her bank accounts and other assets were.  It was not easy.  She didn’t believe in putting all her eggs in one basket, so she had many accounts at different banks and held many stocks.

As he worked through the details of taking care of her estate, he learned some things that she could have done ahead of time to make the process easier, more private and less expensive.  Some of them were small things and other big, but they added up to a promise to himself that he would put his hard lessons to use and plan ahead to spare his wife and children the same trouble.

In the next weeks, we will follow Jack through some of the things he had to do and troubles he learned he could prevent with good estate planning.  For expert advice about your estate planning options, call our office at 436-1996 for an appointment.  ã2012 Gruber Law Office, Ltd.

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