Avoiding probate is a common goal for many seniors seeking to protect their assets and provide a smoother transition for their loved ones. Probate involves the legal validation of a will, settling debts, distributing assets, and can take several months to years to complete. For seniors who want to spare their families from the complexities of probate and ensure their assets are placed in the right hands after their passing, there are various strategies to consider.

Most Common Ways to Preserve Your Assets

One of the most popular methods for seniors to avoid probate is by creating a living trust. A living trust allows you to transfer your assets to the trust while you are still alive. You can serve as the trustee and maintain control over your assets until your passing. After your death, the appointed successor trustee can distribute the assets to your beneficiaries without going through probate.

Joint ownership is another great way to avoid probate. Holding property or assets jointly with rights of survivorship allows those assets to pass directly to the surviving co-owner upon your passing. However, it is essential to consider the implications of joint ownership, such as potential tax consequences and loss of control over the assets.

If you're like most people, you want to ensure that your assets and property are protected for the future. One way to do that is by creating a living trust. According to a recent survey by Caring.com, only 42% of U.S. adults have estate planning documents, such as a living trust or a will.

At Lucas Law, we understand the importance of estate planning and can help you determine whether a living trust is right for you.

Avoiding Probate: A Key Benefit of a Living Trust

One of the biggest advantages of a living trust is that it allows you to avoid the probate process. Probate is the court-supervised process of distributing a person's assets after they die. This can be a lengthy and expensive process, often taking months or even years to complete. By creating a living trust, you can transfer your assets and property to a trustee, who can manage them for your benefit during your lifetime and distribute them according to your wishes after you die. This can save time and money, as well as ensure that your assets are distributed according to your wishes.

When Buffalo Bills player Damar Hamlin went into cardiac arrest on the field on January 2, it was an alarming reminder of the need for people who can help oversee important medical decisions when a person becomes unable to care for themselves. A power of attorney is a powerful legal document that designates an agent to perform specified actions, including making health care decisions.

The Illinois Power of Attorney Act became law as 755 Illinois Compiled Statute (ILCS) 45/ and provides that the requirements for a power of attorney are an agent being designated with a written description of their powers, a properly signed power of attorney document that is signed by the principal that is properly witnessed by a person at least 18 years of age, and a principal acknowledging and identifying their own signature and having the document notarized. Only individuals of sound mind who are mentally competent can legally sign and appoint a power of attorney.

Types of Powers of Attorney

Illinois generally recognizes four kinds of powers of attorney:

Creating a will can be a complicated legal task. The process for executing a will is not nearly as simple as having the executor place his wishes regarding the disposition of his future estate property in writing and sign it. There is a legally-proscribed method for executing a legally effective will. The rules regarding how a will is to be executed are often interpreted quite strictly. A single deficiency in the execution procedure could lead to the entire will being held as invalid and set aside, forcing an estate into the intestacy process. To ensure that all formalities required for the creation of a valid will have been upheld, it is best to execute your will only in the presence of or at the explicit direction of your attorney. While not always possible in certain circumstances, such as when a testator is in the hospital or a skilled nursing facility, a lawyer’s office is generally the most secure place to execute your last will and testament. 

The Formalities of Will Execution in Illinois

While the procedure for executing a will may seem archaic or needlessly strict, these rules are in place to guard against fraud. When a will does not follow the guidelines described in the Illinois Probate Act, it is significantly more difficult to guarantee that a will is legitimate. 

Formalities that must be respected when executing a will include: 

Most 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.