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Posted on in Estate Planning

IL estate planning lawyerMost people think of estate planning as deciding what happens to your belongings after you pass away. While this type of planning, called testamentary planning, is a very important part of estate planning, there is much more to it than that. A thorough, comprehensive estate plan also includes planning for potential future incapacity. People are living very long lives these days, and the fact is that many of us will one day reach a point where we can no longer make important decisions for ourselves, including medical decisions. By using a living will combined with powers of attorney, you can make certain important choices regarding your future medical care now. An attorney can help guide you through creating one so that you can take control of your own later-in-life care.

What Decisions Can I Make Using a Living Will in Illinois?

Living wills are used to govern end-of-life care for people who are terminally ill. The main purpose of a living will is to allow people to choose for themselves whether they would want to receive life-prolonging care in the event that they become terminally ill while unable to make decisions for themself due to incapacity.

Most people have very strong opinions about whether they would want to receive aggressive treatments like chemotherapy that may prolong their life without curing them at a point in their life where they are incapacitated, typically by age-related mental deterioration. Some people have religious beliefs and would want all efforts made to keep them alive as long as possible. Others would prefer to be placed in hospice and kept comfortable. These are intensely personal decisions that everyone should make for themselves.

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IL estate lawyerProbate is not a quick and easy legal proceeding. It can take time, money, and a lot of patience to get through. It can also take significant legal skills if there are difficulties at any point in the process. When you are grieving the loss of a loved one, probate may be the absolute last thing you want to deal with. The added stress of trying to handle a complex legal procedure alone can be overwhelming. There are parts of probate that may be frustrating or confusing. There are a lot of parties who need to be notified, and there is a strong possibility that at least one dispute or claim will need to be settled. In some cases, probate can take upwards of a year. You should be ready for some type of challenge to arise. Working with a probate lawyer can help alleviate the burden of probating your loved one's estate.

The Realities of Going Through Probate in Illinois

Especially if this is your first experience with a probate court, you might be feeling very overwhelmed. The process is not as simple as submitting a will and distributing estate property. If your loved one did not leave a will and you are facing intestate probate, the process may be even more complex. A few things you should expect during probate include:

  • Waiting - Patience is key during probate. There is a lot of waiting around involved. You will need to wait while potentially interested parties are notified and given a chance to file contests. You will need to wait for court dates. There may be long periods where it seems like nothing is happening.
  • Big responsibilities - If you are the estate administrator, then you are taking on an enormous commitment. The duties of a personal representative are numerous. You are expected to handle everything from finding and notifying the decedent’s creditors to taking an inventory and valuation of all estate property. This is no easy task.
  • Dealing with creditors - Part of settling an estate during probate is addressing creditor claims. Any parties the decedent owed money to will have a chance to make a claim. It can be immensely frustrating to deal with creditors taking money out of your loved one’s estate, but this is part of the process.
  • Notifying everyone - One of the most potentially challenging parts of probate is figuring out who you need to notify. Anyone with a potential interest in the estate should be notified, including the decedent's family members.
  • Feuding - Even if no one files a formal contest, family feuds are common during probate proceedings.

Probate is a lot to take on by yourself. It is much better to be represented by an attorney who can address problems that may arise.

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IL estate attorneyThe fact is that most people who live to a certain age are likely to experience age-related mental incapacity. Alzheimer's, dementia, and the natural effects of aging can lead you to become confused, disoriented, and unable to make important decisions or manage your own affairs. Someone else will have to step in and start making medical and personal decisions, as well as managing your finances. If no incapacity planning has been done, the most likely solution is court-ordered guardianship. Guardianship proceedings are public and can be very upsetting to the ward, who has little or no say over who the guardian will be. Incapacity planning allows you to make certain decisions ahead of time or appoint others to do so for you without any court involvement, so do not neglect this important part of estate planning.

What Legal Documents Are Part of Incapacity Planning?

When you start working on your incapacity plan, there are several documents your lawyer may use. These documents and their purposes include:

  • Living will - A living will allows you to directly make a few decisions about your end-of-life care. It does not take effect until you are incapacitated and terminally ill. You can make choices like whether you would want life-prolonging care in this situation or simply comfort care.
  • Health care power of attorney - If you are incapacitated, someone else will have to make medical decisions for you and access your medical records to inform those decisions. With a health care power of attorney, you can choose who that person will be. This gives you an opportunity to talk with that person and make sure they understand your wishes and are prepared to carry them out. It takes effect when you are deemed incapacitated.
  • Financial powers of attorney - These documents allow you to choose someone you would want to manage your financial affairs when you are no longer able to. This person will need to do things like making sure your bills are getting paid and managing your Social Security benefits. It takes effect either when you become incapacitated, or at any other time you choose.

You can be specific about what your agent can and cannot do on your behalf. You can add clauses saying that your agent must consent to pain control measures, but may not consent to treatment for incurable cancer. Or, you could use a clause in your financial power of attorney that prohibits your agent from selling the family home.

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IL estate lawyerEven under the best of circumstances, probate can be a complicated legal procedure. Months or even years could pass between the day your family member’s will (if there is one) is submitted to the probate court to the day you are able to collect your inheritance. There are a lot of steps involved with probate, all of which need to be carefully followed to avoid delays or unnecessary expenses. The sheer complexity of probate means this process is generally best supervised by a qualified attorney who is familiar with the procedures and can handle any potential pitfalls. If you anticipate any problems popping up, it may be wise to speak with a lawyer before initiating Illinois probate.

What Issues Might Make Probate Harder for My Family?

Whether you are getting ready to begin the probate process or debating whether you should try to avoid it in your estate plan, it is a good idea to be informed of some potential issues that can slow down or complicate probate. Any of the following concerns could lead to challenges in probate court:

  • Intestacy - Probate can go more smoothly when the decedent has offered guidance on how his estate property should be distributed in the form of a will. When there is no will, there is the additional step of determining who is entitled to inherit under the laws of intestacy.
  • Large estate - Trying to move a large estate through probate, especially one that is subject to the federal estate tax, can be quite a long and complicated process. All assets belonging to the estate must be accounted for and appropriately distributed, which can become time-consuming and tedious when the estate holds significant assets. However, in the absence of a trust, surviving loved ones may have no other choice.
  • Contests - There is always the possibility that a relative or other legitimately interested party will contest the will. Whether the challenger has a valid reason for bringing litigation or not, a will contest brings the probate process to a grinding halt. Significant expenses can be incurred in the course of addressing a will contest.
  • Executor - The personal representative named in the will may not be willing to carry out his duties. Perhaps he was unaware that he had been appointed, or the situation has changed and he is no longer willing or able to serve as personal representative. This can slow down the process, as the court may have to step in and replace an unwilling or uncooperative executor.

If you anticipate facing any of these challenges during probate, it may be a good idea to speak with an attorney well in advance to prepare. Or, if you are interested in learning how you can avoid these probate pitfalls through estate planning, a qualified attorney can tell you more.

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IL estate lawyerJamie Spears, Britney Spears’s father, is no longer serving as her conservator. His suspension came amid allegations that he had mishandled his daughter’s funds. The conservatorship gave Jamie Spears almost complete control over Britney’s finances and many other aspects of her life. The decision to place Britney under a conservatorship was controversial in the first place. Although the singer was undoubtedly experiencing mental health problems, legal questions remained about whether her public breakdown truly constituted the level of incompetency required to impose a conservatorship.

What did Jamie Spears Legally do Wrong?

Jamie Spears has faced a lot of public backlash about how he managed his daughter’s life during the conservatorship. Allegations that he forced Britney to keep performing for profit, placed unreasonable restrictions on her personal life and mismanaged her funds abound.

Conservators are fiduciaries, meaning that they are obligated to put aside their own personal interests and act solely in the best interests of the person who is the subject of the conservatorship. Britney Spears alleges that he has done the opposite. The star alleges that rather than helping Britney, all Jamie has done is take away her freedoms - and her money.

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