Wheaton, Illinois Wills and Trusts Attorney

An estate is the property that a person owns at the time of their death. Two frequently used estate planning tools are wills and trusts. A will is a written instrument that describes how one's estate is to be distributed at the time of their death. A trust is a property interest where one party has the right to enjoy the property while another has the title.
The laws that govern the creation of wills and trusts can be complicated and vary by state, so it is important to contact an attorney who is familiar with the law of your state if you wish to use these estate planning tools.

Thinking About the Future

If you want to make sure that your wishes are fulfilled upon your death then you should consider making a will or trust. These documents can help to guide those who you leave behind on many important issues, for example:

  • Who you want to manage your estate and distribute your assets
  • Who you want to take care of your children
  • Who you want to make decisions for you if you become incapacitated

If you do not make any sort of estate planning document, then the court will distribute your assets according to your state's intestacy laws. This could lead to people you don't want getting your property. In some cases, it is even possible for the state to get your property. If you want to have control over who gets your property after you die, it is essential that you contact an experienced attorney and get an estate planning instrument made properly.

Wills

A will is the foundation of any estate plan. A person who makes a will is called a testator. Wills can accomplish many things, including:

  • Naming an executor, who is the person responsible for carrying out the instructions in your will
  • Naming a guardian to take care of your minor children
  • Distributing specific property to specific beneficiaries
  • Determining who should receive any property that is not otherwise mentioned in the will

The requirements necessary to create a valid will are different depending on your state. Though generally, the testator must have the mental capacity necessary to understand what property they own, who they are leaving it to, and that they are creating a will when they sign it. Furthermore, most states require that the will be in writing and signed by the testator and two witnesses.
Holographic wills are recognized in about half the states. A holographic will is a will that the testator writes in his or her own handwriting and signs. Some states even recognize oral wills in special circumstances, such as when the testator's death is imminent at the time it is created.

Trusts

A property interest where one person holds the legal title of property for the benefit of another is called a trust. The person who holds legal title is called the trustee, whereas the person who holds the right to enjoy the property is called a beneficiary. The person who creates the trust is called the grantor. A grantor can make a trust revocable or irrevocable.

  • A revocable trust is a trust that the grantor can change or terminate at any time
  • An irrevocable trust is a trust that the grantor cannot change or terminate for any reason

A grantor can make an inter vivos trust or a testamentary trust. An inter vivos trust is also called a living trust and is made by the grantor when he or she is living. A testamentary trust is made by the grantor's will and does not become effective until the grantor's death.
By creating a trust, the grantor gives the power to control the property or legal interest to the trustee. A trustee is bound by law to use the trust property in a way that best serves the interests of the beneficiary. If a trustee does not make decisions in the interest of the beneficiary he or she could be liable for misuse or mismanagement of trust assets.
The many different trusts that can be used include:

  • Self-declaration trusts
  • Support trusts
  • Spendthrift trusts
  • Charitable trusts
  • Life insurance trusts
  • Honorary trusts

It is best to speak with an experienced trusts and estates attorney in order to determine what type of trust is best for your unique situation.

Other Estate Planning Instruments

Other estate planning instruments include:

  • Powers of Attorney: A power of attorney gives another person the power to make decisions on your behalf. You can determine the type and scope of the power, but the most common type gives power over financial and legal decisions.
  • Health Care Directives: A health care directive is also known as a medical power of attorney and allows you to appoint someone to make medical decisions for you if you become incapacitated and are unable to make your own decisions
  • Living Wills: A living will directs what type of medical treatment you wish to receive if you are unable to speak or otherwise give directions regarding your care

Conclusion

Do not wait until the last minute to plan your estate. Estate planning instruments can be modified during your life so there is no such thing as making an estate planning instrument too early. Begin drafting your estate plan by calling us at 630-665-2500 or e-mail us here

 
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