Tag: probate

Can Creditors Seek Repayment of Debts from Your Estate?

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.

Does Signing a New Will Revoke Your Old One?

When your wishes change, you may want to sign a new will and revoke the old one. But you should know how to properly make your new will so that it has legal effect.

Revoking an Old Will

There are several different ways to revoke a will, one of which is making a new will that contains a sentence saying your old will is no longer valid. The other methods of revoking a will are:

  • Destroy the will document (shredding, burning, or tearing it up are acceptable)
  • Instruct someone else to destroy the document
  • Write a new document stating that you revoke your old will and have it properly witnessed
  • Write something like “I revoke this will” on your old will and sign it

People choose to revoke their wills for many different reasons. For example, your wishes about who receives your property might change, or you might have a major life event happen (marriage, divorce, etc.).

Keep in mind that if you do revoke your will without creating a new one, the court will divide your estate among your relatives according to the order of intestate succession. Usually that means spouse, children, and other close relatives receive your money and property.

Making a New Will that Revokes the Old One

When you sign a new will, it should include a specific sentence that states that this new will revokes your old will. It is helpful to include the date of the old will or otherwise describe it in the sentence. If a lawyer prepares your will, make sure he or she includes that sentence.

If your new will does not include that sentence for some reason, the court will most likely compare your old will and your new will. Any differences in the new will should take effect, disregarding what it says in the old will. 

Finally, you should know that it is often better to make a new will than make changes to your old will. You cannot simply write the changes on the document – you need to prepare and have witnessed a separate document called a codicil. When you have significant or many changes, preparing a new will could be best. A lawyer can help you prepare a legally binding will that expresses your wishes.

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.

Locating the Will and Beginning the Estate Administration Process

After a loved one passes away, you and your family may need to locate the will and begin the estate administration process. This could seem like a daunting task. Fortunately, if you are not the executor, it is not your job to do anything besides alert the court if you find a will.

Finding the Will

Your loved one could have left a will almost anywhere – in a safe deposit box, with a lawyer, among other important paperwork, or in a box under the bed. Ask family members if the deceased person ever mentioned a will (or mentioned not making a will). Look for contact information of an estate planning attorney or other trusted professional who may have the will.

If you find a will, you, the executor, or another family member need to alert the probate court that the will exists. (Sometimes, if the estate is small enough, this is not necessary – talk to a lawyer to learn more.) The will should list an executor that the loved one has chosen to distribute his or her estate. Once the probate court learns of the will, a judge should appoint the estate executor to gather and distribute the estate.

If you cannot find a will or believe that the deceased person did not make one, don’t worry. The estate may be small enough that family members can distribute it themselves, or you may need the probate court to appoint a personal representative in lieu of an executor.

The Estate Administration Process

During the estate administration process, the executor or personal representative gathers all assets that belonged to the deceased person. He or she must list the assets and their values for the court. The executor also identifies and locates heirs. Once the court approves, the executor can distribute estate assets to the heirs in the manner explained in the will or prescribed by law. This is often referred to as “probating the will”. The executor also handles filing and paying taxes, and he or she helps meet any other legal requirements or resolve any disputes that arise.

Executors often need help from probate lawyers to handle court appearances and filings. If you have been appointed executor and are in over your head, reach out to a local lawyer for assistance.

Need help administering an 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 You Need to Know About Probate Court in Illinois

If you need the help of a probate court in Illinois, you probably have some questions about the probate process. You may not be familiar with what the court does and why you might need it. Also, you may have questions about your case before you go to court.

What Does a Probate Court Do?

In Illinois, judges assigned to the probate court division of a courthouse decide legal issues related to estates, wills, and trusts. For example, if disputes arise about how a trust should be run, the probate court handles the case. The beneficiaries might believe that the trustee is not running the trust well, or the trustee might need a legal decision on how to interpret the trust document.

Probate judges also spend a lot of time supervising estate executors or personal representatives in the process of distributing deceased people’s assets. The probate process for estates with or without wills involves many steps, including:

  • Reviewing a will
  • Locating and notifying heirs
  • Handling disputes by heirs and claimed heirs
  • Locating and notifying creditors
  • Handling creditor claims
  • Gathering all of the deceased person’s assets
  • Managing assets so that they do not lose value
  • Distributing assets according to the will or the rules of intestate succession

The probate court judge handles some parts of the probate process, and he or she oversees the estate executor or personal representative for the rest. Disputes or questions that the judge must decide can arise at all of these steps in the process.

When Do You Need to Go to Probate Court?

If you are named as the executor in a will or are a family member helping with your deceased relative’s estate, you may need to file a probate court petition. Under Illinois law, estates with lower total values do not always need to go through probate court. But it can be difficult to determine if a particular estate meets those requirements. You may need legal help to make the final determination.

As for trust and inheritance disputes, consulting a lawyer is a good idea too. You will want to know your chances of prevailing in probate court, whether you think the trustee is mismanaging the trust or you think you should inherit part of an estate. The legal issues can be complicated, and the probate process is not always easy without an experienced attorney guiding you.

Do you have more questions about probate court? 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 Is a Revocable Living Trust in Illinois?

An Illinois revocable living trust can help you preserve assets and pass them down to relatives. This very popular estate planning structure is easy to set up with a lawyer’s help and easy to maintain during your lifetime. If you create one, your estate may avoid the costs and time of going through probate.

What Is a Revocable Living Trust?

A revocable living trust is an estate planning structure that allows you to retain control of assets during your lifetime. You become the creator of the trust and also act as its trustee during your lifetime. As a result, you can place assets in trust while still managing and controlling them as trustee. Also, you can change beneficiaries, remove property from the trust, and change some terms of the trust as you wish.

In contrast, you lose all control over assets when you place them in a irrevocable trust during your lifetime. But an irrevocable trust provides better protection from your creditors, because they cannot access the assets in the trust. Creditors can access assets in a revocable living trust during your lifetime because you maintain control over them.

What Are the Benefits of Creating a Revocable Living Trust?

The benefits of a revocable living trust come into play after you pass away. By the terms of the trust, it will become irrevocable (unchangeable) upon your death. A successor trustee named in the document will take over for you in managing and controlling the assets.

Because your estate has no ability to change the trust, trust assets are not part of your probate estate. If you placed all of your assets in the trust, your estate will probably not need to be probated in court. This can save a lot of time and money, plus your estate will not be reduced by those costs. This means more money passed on to your chosen trust beneficiaries.

Further, you may save on estate taxes as long as you placed your assets in trust long before your death. (The IRS may still tax your estate if you funded the trust shortly before you died.) For people with larger estates, paying expensive estate taxes can be a significant concern. A living trust that becomes irrevocable can keep assets out of your taxable estate.

If you are interested in creating an irrevocable trust, talk to a local estate planning attorney. He or she can review your estate, advising you on creating and funding the trust.

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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