Author: Law Office of Andrew Szocka

Powers of Attorney: What do they do?

Powers of Attorney: What do they do?

In life, the unexpected can often occur. Each day has a way of throwing a lot at you that you may not see coming. This is why it’s important to have certain documents drafted that can help you prepare for the unexpected. Powers of Attorney (POA) are precisely those documents.

There are two main types of Power of Attorney, Power of Attorney for Healthcare and Power of Attorney for Property. Both Powers of Attorney are unique in what they allow for and it is important to fill out either or both depending on your circumstances. Despite the name, a Power of Attorney does not grant someone the status of an attorney, or give them any additional ability to operate as an attorney, what it does is allow the designated person to make decisions on your behalf if you are unable to.

The first POA to discuss is the Power of Attorney for Healthcare. This is the most important POA and is honestly something that EVERYONE should have prepared. What this document does is allow the signor to designate a person to make medical decisions on their behalf if they are unable to.

While most people obviously want to be the decision makers over their own care, that’s not always possible. Often times when someone has to be taken to the hospital, they can be arriving in varying states of consciousness. If you arrive at the hospital and are unconscious, how are you going to tell people your wishes? This is where the Power of Attorney for Healthcare comes into play. If you have a designated POA for Healthcare, the document you signed will give the designated person instructions and an expression of your wishes in regards to your medical care.

For example, if you do not wish to be kept on life support because there is no obvious path for recovery. it is important that someone is aware of that as you can’t tell doctors or anyone else your desire if you are unconscious. Having a Power of Attorney for Healthcare can also be important to ensure that you not only receive the care that you would want, but that you don’t suffer any delays in your care. If you end up in the hospital, it is rarely so simple as a loved one coming in and making decisions for your care and things getting going. Hospitals are often wary of allowing anyone other than the patient to make medical decisions due to liability and may require a POA to be signed for any healthcare decisions to move forward. This can cause delays in your care which could be avoided if a POA was already in place.

The other type of POA is the Power of Attorney for Property. This is not quite as universally needed as the Power of Attorney for Healthcare but is still quite valuable for a wide variety of individuals. The main reason to obtain a Power of Attorney for Property is to, yes, you guessed it, manage your property. Now, for individuals who have very little money or assets to their name, a Power of Attorney for Property may not be necessary. However, if you are a person who: runs a business, rents property, has stocks, owns a home, has investments, or just generally has a lot of money and assets they want taken care of, a Power of Attorney for Property is very valuable to you.

If a situation occurs like in the Power of Attorney for Healthcare, where you are rendered unconscious or unable to manage your assets, you need someone with the authority to do so. Banks will almost never release money to family members or non-account holders unless there is a document granting them permission to do so. A Power of Attorney for Property is a document they will accept. Additionally, business owners and landlords would want to designate someone who can continue to operate the business in their absence or collect rent from a tenant. The POA for Property is a document that can be recognized and acknowledged by others that you have designated your POA to be able to manage your business and that they have permission to accept payments on your behalf. As a landlord this is very useful as tenants may take advantage of the fact that its not you collecting the rent by saying “Oh who is this trying to get rent from me? You are not my landlord; I’ll wait until my landlord comes asking for payment and then I will pay them the rent”. Meanwhile the mortgage is still coming due and taxes often still need to be paid.

It is important to choose carefully both, the people you want to be your Powers of Attorney and who you have draft the document/keep record of it. In order to ensure that your voice is able to be heard by your loved ones even when you can express your wishes for your healthcare or your property management, consider contacting the Law Office of Andrew Szocka, P.C. online or by phone at (815) 455-8430

OPENING PROBATE: WHAT DOCUMENTS ARE NEEDED AND WHAT IS NEEDED ON THOSE DOCUMENTS

OPENING PROBATE: WHAT DOCUMENTS ARE NEEDED AND WHAT IS NEEDED ON THOSE DOCUMENTS

When a loved one passes away, if they don’t have a trust that distributes all of their assets and money, the heirs and family must open Probate in order to obtain the documents needed to be able to administer the estate of the deceased. In order to open Probate, you must file a set of initial documents with the court where the deceased lived for the judge to understand the extent of the estate.

Please also be aware that certain counties may require additional documentation and you should refer to your Judge’s standing orders for a complete understanding of what will be needed. However, the documents you will need generally to prepare and submit are as follows:

Petition for Letters of Office: This is the initial petition document you file where you state who is making the petition for the letters of office and how much the estate has in it. You will need to state how much is there in the estate’s personal property, how much value there is in any real estate owned by the estate, and whether there is any current rental or other income coming in from the real estate.  

Affidavit of Heirship: In this document you will list out the family and heirs of the deceased. It can differ on how in depth you must be on this document depending on your judge so its often better to be more inclusive than less inclusive. Judges often want to know if there are living or deceased parents, siblings, and/or children of the deceased person.

Oath and Bond: This document is the oath you are making as the executor to administer the estate in good faith and to the best of your ability. This document is either submitted with or without Surety. Surety, also known as a Surety Bond, is an initial deposit you make with the court so that in case the money from the estate is stolen, the court has a pool of money in which to pay out the heirs. Will’s can and often do waive the need for this initial deposit.

Notice to Heirs or Waiver of Notice: When you open probate, you must notify the various heirs of your filing 30 days prior to the court date. Alternatively, if the heirs are willing to sign waivers of notice, those can be submitted instead and then notice is not required.

Pre-Prepared Orders: At your initial court date, you will be asking the Court to issue an order declaring heirship, which is the Court declaring that the heirs are indeed who you say they are, and an order appointing representative, which is what gives you the letters of office which allow you to administer the estate. You should have these pre-prepared before the hearing to open the estate and bring courtesy copies with you.

As previously mentioned, the documents listed above are just what is generally needed, counties can impose additional requirements and restrictions for documents and it is important to review your local court’s administrative orders and your local judge’s standing orders.

If you need to open a probate estate, please consider contacting the Law Office of Andrew Szocka P.C. We are an experienced law firm who open probate estates across McHenry, Cook, Will, Lake, Kane, and numerous other Illinois Counties. Consider giving us a call at 815-455-8430 or email us at info@szocka.com.

Probate – Inventory and Final Accounting: Do I Need To Do Them?

Probate – Inventory and Final Accounting: Do I Need To Do Them?

When it falls to a family member, friend, or trusted confidant to take on the role of executor it comes with a lot of responsibility. You are accepting the duty of faithfully administering a person’s entire estate, property that they have accrued and managed throughout their entire lives. Sometimes these estates can reach into the millions of dollars and with that being the case, the court finds it very important to see that both an inventory is being kept and at the end, before a probate case can be properly closed, that a final accounting is submitted and approved by the court. But what is the difference between these two responsibilities.

The Inventory is a statutorily required duty that has been waived by judges in certain courtrooms, however it is important to prepare and submit regardless. For starters, even if the judge isn’t going to give you a hard time for not filing one, creditors or displeased heirs may. An inventory is required by statute to be submitted within 60 days after the letters of office are given to the executor 755 ILCS 5/14-1. This inventory should describe the real estate and its value along with any improvements, any personal property owned by the deceased, and the amount of money on hand in the estate. Most often, estates are closed within a year of opening but if the estate stays open longer than a year it is required that another inventory be submitted after one year. If this inventory is not filed, it can be grounds for a beneficiary of the estate to call for the removal of the executor as they are technically not performing their duties.

The final accounting is very similar to the inventory however it must only be filed once. At the end of the estate administration when the executor has distributed all the assets, paid all the creditors, and is now ready to close down the estate they must submit two documents. The final report and the final accounting. The final report is essentially just a statement by the executor that all the money has been distrusted, estate taxes, if applicable have been paid, the heirs have been paid, and the creditors are satisfied. The final accounting is a description of how the estate funds have been paid out. Usually what is recommended is for the executor to keep all of the estate money in a single bank account and then refer to those bank records in order to create the final accounting. The account should state what the real estate was sold for and what was done with this money. Whenever the executor is ready to file their final report and final accounting, they send out a notice of accounting to all heirs and executors 755 ILCS 5/24-1.

After the notice is sent out, a hearing is set on the final accounting. The hearing is an opportunity for any disputes to be heard by creditors or heirs that feel they have not received their proper payout and dispute what is stated in the final accounting. At the end of the hearing if there are no disputes brought, then the accounting becomes binding on all parties.

If you’re an executor and need assistance with administering the estate you’re in charge with or have questions regarding your accounting/inventory, consider giving the Law Offices of Andrew Szocka P.C. a call at 815-455-8430 or shoot us an email at szocka@szocka.com. We would love to assist you!

Interpleader and how it can help your company avoid conflicting claims and liability

Interpleader and how it can help your company avoid conflicting claims and liability

If you work as inhouse counsel for a company that handles money or property for others, you can often face a situation where you receive conflicting requests for said property. Be it a bank, insurance company, or other financial institution, it is important to know what to do if you are receiving conflicting requests for the same property.  If multiple parties are making claim to the same property and there is doubt about who this property goes to, you should not simply choose someone to award the money to.  If you do this, your office could face liability to the other parties if it is determined that they were in fact the proper owners of the property.

If it cannot be easily determined who the true owner of the property is, the next step taken by your organization is to file a Complaint for Interpleader.  This should be filed in the county where the money is being held.  Your complaint will be brought under 735 ILCS 5/2-409.  You will lay out the facts resulting in the disputed property, making it clear to the Court that your client has no interest in the property themselves, and your prayer for relief will request that you or your client be allowed to deposit the money with the Court and then be dismissed from the matter.

Once a Complaint for Interpleader is brought, the trial court will determine if there is indeed a conflict between the requests.  If it is agreed by the Court that there is a reasonable dispute over who is the proper owner, they will grant the request for interpleader and the Court will take possession of the disputed property.  Upon the deposit of the funds or property with the Court, you or your client will be dismissed from the matter.  From there, the disputing parties will have their arguments heard by the Court as to why they are the proper owners.  The Court will then make a decision as to who is entitled to the money and award possession.

Regardless of who is inevitably awarded the money, filing your Complaint for Interpleader is how you or your company can avoid liability to conflicting parties.  Leave the decision making in the Court’s hands and avoid making that decision yourself if it is not a clear choice.

If you work for, or operate, a company that is currently facing multiple requests for the same property and want to consider filing for Interpleader, consider contacting the offices of Andrew Szocka P.C. at 815-455-8430 or by emailing us at info@szocka.com.

 

Partition -What is it for and how do I get started?

Partition -What is it for and how do I get started?

When people come to share property, they do so with the expectation that they will share it equally and in good faith. Often this can be property purchased by marital couples, business partners, or even good friends who wish to own property and live together. But what happens if the people sharing this property can no longer get along and don’t want to share property together anymore? This is where partition is used.

Partition comes into play most often with shared real estate. Often times people will purchase a home together and put both their names on the title. When a relationship breaks down for whatever reason, it can often become a debate about who will be leaving the property and who will be keeping it. Understandably, when both parties have their name on the title, it can be a difficult question to answer as to who gets ownership of the property.  A complaint for partition is where a party comes before the Court and explains that jointly held real estate is in dispute and parties need the Court to rule on who will take ownership.

Upon the filing of the complaint, the Court will examine the filing and if it is established that the complainant has a ownership stake in the property, the court will either make a ruling on whether partition is necessary or, if they require more information, they will nominate a partition referee to examine the property and documents make a recommendation the Court of whether partition is necessary and if so, in what method should it be done.

In almost every situation, if the parties cannot agree as to how the property should be split and don’t want to continue to share it, the Court will rule that the property is to be sold and the proceeds are to be split amongst the parties evenly. It should be understood by joint owners of real estate that this is one of the only actions the Court can take in this matter and is usually the fairest method of handling the property in the Court’s eyes. If parties cannot agree as to who should take possession of the property or who will buy-out the other’s ownership interest, they should be aware that the Court will likely order the house sold to a third party rather than awarding it to either of the two original owners.

When the initial partition complaint is brought, it can be noted in the complaint if the plaintiff believes they are entitled to a greater percentage of ownership based on individual contributions and payments toward the shared property. Examples of this would be mortgage payments undertaken by a single owner, improvements or repairs made by a single owner, or a greater percentage of the initial purchase payment paid by a single owner. All of these and more can be considered by the Court when they make their determination. While it will likely not result in the Court awarding the property to one party over the other, or ordering a buy-out from one side, it will go towards the Court’s consideration of what percentage of the sale proceeds to award to a single party rather than the default 50/50 split.

If you have a property you share with someone and you feel that this property can no longer be shared evenly between you, consider contacting the Law Office of Andrew Szocka P.C. at 815-455-8430, by going on our website, or by emailing us at info@szocka.com. We have extensive experience in the realm of partition and would love to assist you with your matter!

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