Posts Tagged ‘probate’
Illinois has long had a law which permitted the transfer of up to $100,000 in personal property at a person’s death without the need for probate. The law permitted the transfer by the completion and execution of what is called a small estate affidavit. Since a probate estate can take seven months to a year or more to complete and can involve attorney fees and costs of $2,000 or more, this alternative to probate can be very useful in the right circumstances.
Until the beginning of 2015, the small estate affidavit had a characteristic which severely limited the usefulness of the procedure, in that the affidavit could only be used where the estate had no debts other than funeral expenses. This changed through a law passed in 2014. Now a small estate affidavit may be used in estates which have non-funeral debts, provided all debts of the decedent are listed in the affidavit.
The person who signs the small estate affidavit becomes responsible for paying the debts. In addition, the signer becomes responsible for distributing the estate to its rightful recipients, who are also to be listed in the affidavit.
The small estate affidavit allows banks and other third parties who have possession of the decedent’s assets to transfer them in accordance with the affidavit. Further, the small estate affidavit may used to gain access to a safety deposit box of the decedent.
Feel free to contact an Illinois estate administration attorney experienced in the use of small estate affidavits at Kreisler Law if you have questions about the use of a small estate affidavit to avoid probate or any other area of the laws governing Illinois estate planning or Illinois probate or estate administration.
One of the more useful tools used by Illinois Estate Planning attorneys is the inter vivos trust, also commonly known as a living trust. This is a trust created by someone during their lifetime and then “funded” by transferring assets from the name of the person who created the trust (the “grantor”) into the name of the trustee. The estate planner generally combines the living trust with what is called a “pour over” will, which is intended to take care of any assets which remain in the testator’s name at the time of his or her death. The pour over will provides that any assets in the testator’s name at the time of his or her death “pour over” into the trust, which contains the complete dispositive estate plan.
Living trusts typically can be amended or revoked by the grantor at any time or times. To the extent assets are transferred into the trust during lifetime, the trust creator can avoid probate at death or in addition, the often much costlier and longer lasting need for a probate court guardianship of the estate of a grantor who suffers a stroke or other debilitating condition rendering him unable to handle his affairs during his lifetime.
The grantor of the living trust can name himself the initial trustee during his lifetime, thus retaining complete flexibility and control over the assets in the trust. Under Internal Revenue Service rules, the trust can be simply ignored during the grantor’s lifetime, with all income and expense reported by the grantor under his or her social security number on his or her 1040 annual tax return. Further, the trust is ignored for such important issues as qualification of a residence transferred to the trust for purposes of the real estate tax homestead, senior and senior freeze exemptions.
Feel free to contact an Illinois estate planning attorney experienced in the use of living trusts at Kreisler Law, if you have questions about the use of trusts in your estate plan or any other area of the laws governing Illinois estate planning or Illinois probate or estate administration.