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An easement is a non-possessory right or privilege in another’s real estate.  Nationwide Financial, LP v. Pobuda, 2014 IL 116717 at ¶ 29; McMahon v. Hines, 298 Ill.App.3d 231, 236 (2nd Dist. 1998).  A party with the right to use an easement enjoys a “dominant estate.”  Id.  The estate subject to the easement is the “servient estate.”  Id.

Illinois recognizes express, implied, and presumed easements.  An express easement is formed by an agreement between the owners of the dominant estate and servient estate.  Chicago Title Land Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420 at ¶ 32.  Implied and presumed easements do not arise out of an express agreement.  Rather, they are created under special circumstances.

There are two types of implied easements – an easement by necessity and an easement arising from a pre-existing use.  Granite Properties Ltd. v. Partnership v. Manns, 117 Ill.2d 425, 435 (1987).  Both require the party attempting to obtain the easement to establish proof by clear and convincing evidence.  Katsoyannis v. Findlay, 2016 IL App (1st) 150036 at ¶ 28.  Implied easements are favored by public policy because they encourage full utilization of land.  Smith v. Hessinger, 319 Ill.App.3d 150, 155 (4th Dist. 2001).

A common example of an easement by necessity is a land-locked parcel of property.  Manns, 117 Ill.2d at 435.  Unless a contrary intent between the owner of the land-locked parcel and owner(s) of the surrounding property is manifested, the owner of the land-locked parcel can be found to have ingress and egress rights over the surrounding property.  Id.

Easements implied from a prior existing use arise when an owner of a tract of land, or two (or more) adjoining parcels, uses one part of the tract, or one of the adjoining parcels for the benefit of another part of the tract or other adjoining parcel.  Id. at 436.  The use of one part of the tract, or of the other adjoining parcel, must be apparent, continuous, and permanent in nature.  Id.

Again, in the absence of a contrary agreement, conveyance of part of the tract or adjoining parcel that was providing the benefit to the rest of the tract or other adjoining parcel, will include an implied easement from pre-existing use, even if the easement is not specified in the deed.  Id.

Further case law has articulated three elements required for an implied easement from a pre-existing use, 1) common ownership of the claimed dominant and servient parcels with a subsequent conveyance that separates that ownership, 2) prior to the conveyance, the common owner used part of the united parcel for the benefit of another part of the parcel, and the use was apparent, obvious, continuous, and permanent, and 3) the claimed easement is necessary and beneficial for the enjoyment of the conveyed parcel.  Burrell v. Bishing, 2017 IL App (5th) 160223-U at ¶ 22 (unpublished opinion).

An example of an easement implied from a pre-existing use would be an individual that owns two adjoining properties (“Parcel 1” and “Parcel 2”).  A well is built on Parcel 1 that supplies water to both Parcel 1 and Parcel 2.  The individual eventually sells Parcel 2 but the conveyance does not mention any utility easement.  Parcel 2’s new owners likely have an easement implied from a pre-existing use if the original common owner of Parcel 1 and Parcel 2 used the well to provide water to both parcels in an apparent, obvious, and continuous manner, and the water well is necessary and beneficial for the enjoyment of the conveyed Parcel 2.  See Frantz v. Collins, 21 Ill.2d 446 (1961).

Finally, an easement may be presumed.  A presumed easement is also called an easement by prescription.  To establish an easement by prescription, the use in question must occur for 20 years, and be adverse, uninterrupted, exclusive, continuous, and under a claim of right.  Pobuda, 2014 IL 116717 at ¶ 28.  When an easement meets the preceding criteria, there is a presumption of a right to the easement for the owner of the dominant estate due to the long acquiescence of the owner of the servient estate.  Id. at 29.

In the context of a prescriptive easement, “exclusivity” does not mean that the owner of the servient estate cannot be using that property for the same reason as the dominant estate (for example, a shared driveway).  Id.  Exclusivity means only that the rights of the dominant estate’s owner does not depend on the rights of any other parties, including the owner of the servient estate.  Id.  In addition, to meet the requirement for “adversity,” the use must be enjoyed under circumstances that it has been claimed as a right, not a privilege or license that can be revoked at the pleasure of the servient estate’s owner.  Id.


For additional reading on easements see:


Emanuel v. Hernandez, 313 Ill.App.3d 192 (2nd Dist. 2000) (re: easements by necessity);

Dudley v. Neteler, 392 Ill.App.3d 140 (4th Dist. 2009) (re: pre-existing use easements);

Olson v. Barbara, 2016 IL App (1st) 142810-U (re: prescriptive easements).

Updating Your Estate Plan When You Have New Stepchildren

When you welcome new stepchildren into your life, you may need to update your estate plan too. With the addition of new family members, your estate plan might not reflect your wishes anymore.

Which Updates Do You Need to Make?

The updates you should make to your estate plan are similar to the updates you would make if you just had a baby. This is true whether you just married the stepchildren’s parent or if the children have recently come to live with you. In addition, you may need more changes if you recently got married to the stepchildren’s parent. For example, you may need:

  • A will that includes the stepchildren
  • A guardianship designation for each stepchild
  • College savings, like a 529 plan
  • More life insurance

You might also want to expand your estate plan to include medical directives, powers of attorney, and other documents that allow others to make decisions if you cannot. These estate planning structures protect children in your life by maintaining stability even if you are not the one making the choices.

If the stepchildren do not live with you full-time, you may not want to include them in your estate plan yet. Or maybe the children are older and live independently, so a gift in your will is more appropriate. Also, consider talking to your partner, husband, or wife about his or her estate plan. Perhaps your significant other needs to make a plan that protects the children, even if yours does not.

How Do You Make Changes to Your Estate Plan?

The easiest way to make changes to your estate plan is to talk to your estate planning lawyer. You may need addendums written for your documents, or you may need new documents prepared. Your lawyer can quickly and efficiently prepare the correct documents to carry out your wishes.

Be sure to ask your lawyer if he or she recommends that you add any additional estate planning structures. For example, a trust could lower your potential gift and estate tax liability. It also allows you to leave property or money to chosen beneficiaries either during your lifetime or later on. When you have new stepchildren, you will want to take advantage of helpful planning opportunities for the future.

Want to make changes to your estate plan? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

What to Do If You Want to Disinherit Someone from Your Estate

If you have chosen to disinherit someone from your estate, you need to take a few steps to ensure that your wishes are carried out. First, your estate planning documents must clearly explain the disinheritance. Second, you should be prepared for conflict if others learn of your choice. Third, it is a very good idea to speak to an estate planning lawyer and have him or her prepare the necessary documents.

  1. How to Disinherit Someone from Your Estate

Deciding not to give someone close to you any money or property upon your death is a very common choice. That person may not be in your life anymore, you may have had a serious disagreement, or you may think that he or she does not need the money. It is perfectly fine to disinherit someone if you would like, but the key is to do it effectively.

To disinherit someone from your estate in the most effective way, you need to explicitly exclude that person from your will. In other words, your will needs to state in plain terms that you do not want the person to inherit anything. Alternatively, it could state that the person should inherit only a small sum or a particular item of personal property and nothing more.

In some cases, the law does not really allow you to disinherit someone unless your will says so. For example, there are laws that protect spouses from being disinherited. Some courts will enforce these laws even if it appears that a deceased person wanted to disinherit his or her spouse.

  1. Get a Lawyer

To avoid a situation where your wishes for disinheriting someone are not carried out, get a lawyer. A good estate planning lawyer can prepare your will to your specifications. The will often should include a specific statement that you are disinheriting a person, especially if it is a close relative. Also, he or she can discuss the legal implications of disinheriting someone with you. If you need other estate planning documents to distribute your estate to your chosen heirs, your lawyer can assist with those too.

  1. Be Prepared for the Consequences

Unfortunately, your family members may be very unhappy if they learn that you plan to disinherit someone. This is especially true if the person is a close relative. Be prepared to either keep your decision a secret or explain yourself to your family. If you do keep the decision a secret, be aware that your estate could face a will dispute in probate court after your death.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

What Information Should You Include in an Illinois Will?

When you decide to make a will, you may have questions about which information to include in it. First, you will probably want a lawyer’s help for many reasons. Second, you should be very clear about who receives which gifts. Third, you can include some additional information in your will for your executor and heirs.

  1. Why Do You Need a Lawyer’s Help with Your Will?

Most people are not familiar with preparing wills and do not know the legal rules surrounding them. It is unfortunately very common for someone to write out or type up a will and later have it invalidated by the courts. When this happens, assets may pass on in a way the deceased person never intended.

A competent estate planning lawyer can help you avoid these problems. One of the many issues that a lawyer can address is which property you may give away in your will. Any assets held by joint tenancy, that are payable to someone besides yourself or your estate, or held in trust are not part of your estate. Those assets will pass to the other joint tenant, the person to which they are payable, or the trust beneficiary. Your lawyer can identify these assets, as well as the assets that you can dispose of in your will.

  1. Clarity as to All Gifts You Make

Even when working with a lawyer, it is extremely important to be clear about all gifts that you make in your will. For example, you need to identify the full name of any heirs so that there is no confusion about who you mean. “All my money to Jan” in a will could easily become a problem if you have a mother named Janet, an aunt named Janelle, and a child named Janey.

In addition, you must clearly identify the specific gifts you are making. Rather than leaving the “green car” to Janet, have your lawyer list out the license plate number or VIN number. Explain how much money you want each person to have and the sources of the money, if it matters. For example, you could direct your executor to sell your house and distribute the sale money 50/50 to your sons.

  1. Additional Information in Your Will

Some people choose to include additional information in their wills, such as a guardian designation for children or funeral directions. The guardian designation indicates who the deceased person wants to take care of surviving children, although the court gets the final say about who will be appointed guardian. Funeral directions can help the executor and family understand the deceased person’s final wishes, if he or she did not specify them in an advance directive.

Finally, be sure to sign your will properly and have it witnessed in accordance with Illinois law. Your lawyer can help with this step.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

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