Tag: Andrew Szocka

Capacity to Make a Will: What You Need to Know

Posted May 22, 2022 by Law Office of Andrew Szocka

If your ailing relative wants to make his or her will, the concept of capacity could come into play. Capacity to make a will affects whether the will is valid when the relative’s estate is distributed. If the creator of the will did not have capacity when he or she signed it, the probate court may not enforce its terms.

What Is Testamentary Capacity?

Capacity to make a will (testamentary capacity) is defined as the “mental ability to know and remember who are the natural objects of [your] bounty, to comprehend the kind and character of [your] property, and to make disposition of the property according to some plan formed in [your] mind.” In other words, to make a will you need to understand which property you own and be able to plan out how to distribute the property to others.

How Do You Tell If Someone Does Not Have Capacity?

The probate court must assume that a person making a will has testamentary capacity, unless it is proved that he or she did not. Physical impairments alone usually do not make someone lose capacity. It is more likely that a mental impairment would make someone lose capacity. In other words, the inability to speak or move does not necessarily mean someone cannot make a valid will. But someone with a severe mental impairment such as advanced dementia might not have capacity.

In addition, the appointment of a guardian for someone may be evidence showing the person does not have capacity. But neither physical impairments nor having a guardian are conclusive evidence.

Why Does Testamentary Capacity Matter?

If the person making the will did not have capacity at or around the time it was signed, the probate court may invalidate the will. An interested person such as a relative must “contest” or fight the will in court. He or she has the burden of providing evidence that the testator did not have capacity.

When an interested person wins a will contest, the will in question is disregarded. The testator’s property might pass to relatives via intestate succession or an older will might be used instead. This could drastically affect how the estate is distributed.

Have questions about making your will? 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.

Does Divorce Invalidate Gifts to Your Ex-Spouse in Your Will?

Posted May 22, 2022 by Law Office of Andrew Szocka

When you get divorced, you may wonder if the divorce decree invalidates gifts to your ex-spouse made in your will. In Illinois, a divorce nullifies any language in your will that makes your ex-spouse an heir.

Effect of Divorce on Gifts

The effect of divorce on gifts varies somewhat from state to state. The type of gift matters too. In Illinois, any gifts made to an ex-spouse in a will signed before the divorce cannot be enforced. The ex-spouse will not inherit no matter what.

It does not matter how specific the will’s language is – all gifts to ex-spouses are not valid. It also does not matter when the will was made. In one legal case, the testator signed his will long before his marriage when he decided to leave his estate to his friend. Later, he married the friend, and then they got divorced. The court found that his gift to his ex-wife was not valid, regardless of the fact that he made the will before the marriage and before the divorce.

However, the rule is different for life insurance policies in Illinois. There is no Illinois law that removes your ex-spouse as beneficiary of your life insurance policies. The reasoning is that if you wanted to change the beneficiary, you could have done so. As a result, you must review your life insurance after divorce. If your ex-spouse is the beneficiary and you do not want him or her to receive the proceeds, then update your beneficiary designation.

Updating Your Will After Divorce

Because of the effect of divorce on testamentary gifts in Illinois, you must update your will after a divorce. If you do not update the will, then the probate court will simply disregard a gift to your ex-spouse and distribute the estate to your other heirs. This may have a result that you did not intend. Updating your will is the best way to have peace of mind that your wishes will be carried out.

If you still want to leave property to your ex-spouse (perhaps you are on friendly terms, or he or she needs support), then you can. First, make sure the will is dated after the date of the final divorce decree. Also, you should consult a wills and trusts lawyer to ensure that the will includes appropriate language about the gift to your ex-spouse.

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.

Undue Influence When Making a Will: What You Need to Know

Posted May 22, 2022 by Law Office of Andrew Szocka

When someone uses undue influence to affect the contents of a will, that will may not be valid. If you are helping a relative manage his affairs, you should know how undue influence could negatively affect his legacy. Alternatively, if you are shocked at the contents of a deceased relative’s will, you may need to figure out whether it was the product of undue influence.

What Is Undue Influence?

Unfortunately, a friend or relative looking to inherit may persuade a person making his will to change the contents. The law calls this “undue influence” when it “prevents the testator from exercising his own will in the disposition of his estate”. In other words, the friend or relative’s wishes end up in the will, rather than the testator’s wishes.

When someone is unduly influenced, he or she may have been pressured, bullied, or misled. But even kindness or affection could become undue influence if they keep the testator from putting his own wishes in the will. For example, a relative who wants to inherit more money might begin spending more time with a testator, being friendly while subtly hinting that the other relatives do not deserve inheritances.

When Does Undue Influence Happen?

To call a will into question, the undue influence must have been directly connected with the will’s signing. It also must have been operating on the testator when the will is made. In other words, the undue influence can’t have happened years earlier. And it can’t have been on a subject other than the contents of the will. (However, elder abuse laws might prohibit other kinds of influence over an older person’s actions.)

Who Can Unduly Influence a Testator?

Heirs, potential heirs, and people connected to heirs can unduly influence a testator. For example, a son could convince his mother to increase his inheritance and disinherit his siblings. Or the son’s wife could convince her mother-in-law.

Suspected undue influence may lead to a will contest in probate court. The disinherited siblings, for example, could question whether the son unduly influenced the mother’s will. If the court finds that there was undue influence after reviewing the siblings’ evidence, the will would not be valid. A prior will or the order of intestate succession would dictate how to distribute the estate.

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.

Can Creditors Seek Repayment of Debts from Your Estate?

Posted May 22, 2022 by Law Office of Andrew Szocka

If you are in debt, you might hope that the creditors will go away after you die. Your relatives shouldn’t have to pay back the debts that you owe, right? Unfortunately, the law does allow creditors to seek repayments of debts from your estate.

How Can Creditors Get Paid from Your Estate?

After you pass away, your executor or representative will gather your assets and distribute them to your heirs. Before your heirs get anything, though, the executor must notify creditors of your death. The creditors can choose to assert claims against the value of your estate.

These claims get paid off before your heirs receive any money. If you do not have liquid assets, like cash, the executor may need to sell things to raise cash for the debts. If your debts exceed the value of your assets, then each creditor will be paid for a portion of his or her claim. But your heirs will receive nothing.

Asset Protection Strategies

There are ways to protect your assets from creditors, even after death. Creditors can only make claims against your estate – that is, everything that you owned individually before your death. Assets owned by a trust or business, or those co-owned with a second person, may be protected from creditor access. However, creditors may be able to access business assets if you were the sole owner, and they could access your portion of co-owned assets in some cases.

Also, there are laws in place to prevent people in debt from “hiding” assets from creditors by changing the assets’ ownership. You must be very careful when setting up asset protection strategies to stay within the law. For that reason, it is often best to think about asset protection before you get into debt. Alternatively, talk to a lawyer to see if you have other options.

As discussed above, creditors can access any assets that are part of your estate. Assets left in trust to beneficiaries that are not your estate, however, are usually protected because the trust owns them, not you. If you plan ahead now by creating a trust, you may save your heirs from disappointment when creditors take a large portion of the assets.

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.

Can a Trust Creator Ever Act as the Trustee, and Why?

Posted May 22, 2022 by Law Office of Andrew Szocka

Sometimes, the creator of a trust also acts as its trustee. This situation most often happens when someone creates a trust intended to benefit relatives after the creator passes away.

Why Would the Trust Creator Act as the Trustee?

Often, someone placing his or her property in trust (a “settlor”) wants to maintain some control over the property. He or she might create a trust that appoints himself or herself as the trustee, at least for now. The property can get transferred into the trust, but the settlor still gets to make the management decisions. The settlor might even be one of the beneficiaries too (but cannot be the only beneficiary).

As long as the settlor is alive, he or she can manage trust property and add more property to the trust. Placing property in trust during your lifetime has many advantages, including privacy, asset protection, and sometimes tax benefits.

What Happens If the Settlor Passes Away?

If the settlor passes away, a successor trustee should take over trust management. This trustee is either named in the trust document or appointed by the court. The successor trustee picks up where the settlor-trustee left off, managing assets for the benefit of the beneficiaries.

Often, settlors structure their trusts so that assets in their estate “pour over” into their trust once they pass away. This may avoid the need for probate of the estate. It also may allow the settlor to more readily pass on assets to the trust beneficiaries over time.

If a settlor does not have a “pour over” will and trust, then assets not placed in trust before the settlor’s death must get distributed according to the will. Unfortunately, some settlors intend to transfer ownership of assets to their trust but never get around to completing the formalities. This can result in a complicated estate distribution and beneficiaries not receiving the benefits that the settlor intended. If you plan to be settlor and trustee, ensure that you complete all transfers of ownership as soon as possible.

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.