How Do I Provide for a Special Needs Child in My Will?

special needs child in my willFor anyone who has a child or dependent with special needs, leaving that child unprotected and unprovided for is a nightmare that can result in many sleepless nights for parents. As parents, the ideal scenario is that we teach our children to be self-sufficient so they can take care of themselves – and maybe even their own children – after we’re gone. But that’s not always possible when your child has special needs and may or may not be able to hold down a job or take care of their day-to-day needs, much less make responsible financial decisions. So you may be thinking, how do I provide for a special needs child in my will?

In Illinois, an individual with special needs is entitled to receive monthly payments in Supplemental Security Income (SSI), assuming they meet the criteria for their asset worth and monthly income, if any. If they have any sort of income, but it is less than what they’d receive in benefits, then their SSI is reduced until the combination of their income and SSI adds up to the total eligible benefit amount.

Of course, relying solely on SSI may not be sufficient to live on, so parents and loved ones have the option of setting up a Special Needs Trust (a.k.a. Supplemental Needs Trust). A Special Needs Trust may allow someone with special needs to accumulate assets or income that exceed the SSI thresholds, while still getting the maximum amount they can in SSI benefits.

Generally, a Special Needs Trust is set up by a parent or other loved one, who then acts as trustee. Banks often also have people on staff who can manage these trusts for you. Once the trust is set up, a bank account can be opened in the name of the trust and any income (aside from SSI), assets and/or gifts from loved ones can be deposited into the trust bank account.

The trustee is responsible for managing those funds and ensuring they are used only for the trust’s beneficiary, not including room and board, which are supposed to be covered by the SSI. The idea behind the trust is to ensure a good quality of life for the beneficiary by providing a source of disposable income to go towards things they don’t necessarily need, but could still benefit from.

When a parent of a child with special needs is planning for their estate, it is generally recommended that, rather than leaving a typical inheritance for their child, they put that inheritance into that child’s Special Needs Trust instead. This can help avoid the risk of the child losing their SSI eligibility.

As with all estate planning, parents are better off setting up a Special Needs Trust for their children as soon as possible in order to avoid leaving their children high and dry if something were to happen to them. Don’t leave it to someone else to set up the trust after you’ve passed away because that can make things much more complicated and more difficult. Instead, be sure to stay on top of things by getting everything in order now to make sure your child has everything they need after you’re gone.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What to Do When an Executor Fails to Carry Out the Will

carry out the willAn executor’s job is to carry out the will, meaning he or she will execute the will and handle the estate of the deceased by carrying out their wishes. This can include paying debts and taxes and distributing the assets to the beneficiaries in accordance to the instructions of the will. It is the responsibility of the of the executor to do these things in a timely manner, and act in the best interest of the beneficiaries.

But what happens if the executor isn’t doing their job? Can they be removed from their position? There are many things you should do if you find that the executor isn’t doing their job properly.

Know the Timeline to Settle an Estate

When a loved one passes away, you probably start to wonder how long it takes between the time the will is read and when you will get your inheritance. It depends on how complex the estate is, and the process can take anywhere from a few months to a few years. The executor can only disperse the assets of the estate after the property is evaluated and all the debts and taxes have been paid. The executor can be held personally liable if the inheritances are paid first and there isn’t any money left to cover debts and taxes.

Determine If You Have a Case

You should first try talking to the executor about your concerns. If that doesn’t work, you may have to take legal action.

To have an executor removed from an estate you need to be able to show that they are not living up to their responsibilities of their job or that they are doing something that isn’t legal. The court may remove an executor for the following reasons:

  • They are no longer eligible because they have been convicted of a felony after being named executor
  • They are no longer suitable because they have a conflict of interest
  • They have failed to carry out the wishes of the deceased or they haven’t done anything at all
  • They mismanage the estate by stealing from the estate or wasting assets

The executor must commit a serious infraction for the court to act. Taking a long time to settle the estate is not considered a serious infraction on its own. It must be in addition to one of the examples above. In most cases, you must wait a little longer to get your inheritance.

Seeking Legal Recourse

If you believe that the executor is not living up to their duties, you have two legal options: petition the court or file a civil lawsuit.

Beneficiaries can petition the court to have the executor removed from their positon if they can prove they should be removed for one of the reasons listed above. The court will have a hearing where the parties involved can tell their side of the story. Afterwards, the court can remove the executor and appoint another one if they find just cause.

Your other option is to file a civil lawsuit against the executor if you can prove that you have suffered due to their actions, or lack of actions. For instance, this would be an option if the executor has stolen money or failed to protect the assets of the estate. There is always a chance you will be able to settle before ever seeing the inside of a courtroom.

No matter where you are in the process of settling an estate, you need to speak to a qualified estate planning attorney if you have any concerns at all. At Sherer Law Offices, our attorneys will advise you and guide you as to what to do if you find yourself in this difficult situation.

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How to Purchase Investment Property That Has Legal Issues

investment propertySo, you have decided to make the biggest financial decision of your whole life by buying an investment property. However, you have concerns about the legal issues that others have had in recent years. Maybe the property is underwater, or the rental income doesn’t cover all of the expenses associated with the property, or maybe the mortgage payments have become unaffordable.

You aren’t alone. Even though those issues are there when buying investment property, there are many more. Despite the fact that these issues have been around forever, it is only recently that buyers have been getting better about doing their due diligence and taking the time to work hard to lower the risk on real estate. The process is really not that complicated, but it is time consuming. The following is a list of things that should be on your due diligence list to lessen the chance of something going wrong with your investment.

Understanding the Purchase Process

A buyer should have a complete understanding of the purchase process right from the beginning. Review the contract as early as possible before you sign it. Make sure you understand how to shop for the right property, make sure you know about making an offer, contingencies, appraisals, financing a mortgage, and when the earnest money deposit becomes “at risk”.

Does it Make Sense Financially?

Start by jotting down the deal. You need to determine the amount of cash you will invest and what rate of return you project to be earning. Bank CD’s pay 1%, Bonds pay 5%, while real estate is riskier. So what should you be earning? Five percent is the suggested amount. Farther down the road appreciation value may come up, and it will most certainly help, but let’s count the cash first.

What about buying vs renting? There are a few simple guidelines to consider. If you plan to own for less than five years, you should keep renting. You will not be throwing away money and it will be less stressful. Buying for the long term is the best move you could make. And don’t buy just anything to be buying something – buy the property you fall in love with that will make you happy in the long run.

Be a Smart Shopper

Are you hoping to grab a deal of a lifetime on a foreclosure or short sale? If you are after a great deal at an auction, it only wastes your time and energy chasing something that has little chance of success. Skip past the get-rich-quick schemes. Go with a more conservative approach and shop for a traditional sale.

Income and Real Estate Taxes

If you are buying to save money on your taxes, you should know that many couples guying under $300,000 get little in tax savings. People with a higher income and more expensive property get the bigger tax benefits. Meet with your CPA or an experienced real estate attorney to determine if there are any tax benefits you can earn.

Getting a Fair Deal Financing Your Mortgage

If you can get financing, it has become easier to get a fair deal because of the new federal regulations. Even so, you should understand your Good Faith Estimate and how to take it apart to make sure you get that fair deal. Mortgages are long term, so take the time necessary to talk to a couple of different lenders, understand your mortgage, and make a good decision.

Homeowners Association (HOA)

This is an item that most buyers don’t know to review. The finances and the operation of an HOA are becoming a huge risk issue these days. If you don’t take the time to review them and understand them, you may get a big surprise in the form of drastically higher fees or special assessments in the years to come. Meet with someone that can help you decipher them. A qualified real estate attorney can help you with that. The ultimate goal is to avoid a community where the HOA is in really bad shape.

Fix Up Costs and Home Inspections

One of the most important things you can do as a buyer is to have a home inspection done. During this process, you should be putting together a list of what needs to be fixed and/or replaced. You can then take your list to a home improvement store and get an idea of the total cost of bring the property up to your standards. This will also help you to negotiate and seller’s credits and/or terminate the deal if the costs are too high.

Title Issues and Lot Lines

This is another item people tend to neglect paying attention to. Even though the risk of an issue is very low, the loss potential is huge. Take the time to review your title abstract and the plat or survey of the property, then take a walk around the property. It could save you endless financial stress in the long term.

Buyer Beware!

If you take the time to learn the risk issues and do your due diligence before you purchase property, you can greatly reduce your risk of something going wrong. While it can be a lot of hard work, it will be much easier than trying to straighten out a big mess after you close the deal.

Investing in real estate is a huge step. At Sherer Law Offices, our experienced real estate lawyers will help guide you through the process to make your real estate investment as smooth as possible.

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Can My Spouse Lease Out Our Rental Property Without My Consent During a Divorce?

rental property during divorceThe answer to this question, simply put, is no. When it comes to owning property, a married couple has to abide by the same rules that two business partners would, which means you both have to get the other person’s permission to take any action involving your property.

Basic Facts

Under Illinois law, all property acquired during the marriage, is considered marital property, regardless of how the property is titled. For most couples, when they buy property, they sign documents involving ownership and payment agreements. But even if you aren’t on the title to property, the house is presumed to be marital property if purchased at any point after the date of marriage, with some exceptions. Also, if you and your spouse took out a loan to pay for the property, you would have signed a document stating that you are both responsible for the monthly loan payment. Again, the same rules apply to debts in a marriage as property: if the mortgage was signed after the date of marriage, it is a marital debt even if only one spouse is on the loan itself.

Because a house that was acquired after the marriage is marital, you and your soon-to-be ex must have each other’s permission to do conduct any sort of transaction regarding the property, particularly if you are going through a divorce. This is always the case unless the deed states that a certain percentage of ownership has been assigned to each spouse, or whether your spouse’s ownership percentage specifically allows them to act on their percentage without your permission.

Haven’t spoken to your spouse in a while? If you are estranged with your spouse, they must still get your permission to lease out the property. The lease will be null and void without your signature.

What Can You Do?

If you find out your soon-to-be-ex has rented the property without your permission, there are few things you need to look into. First, you should contact your mortgage lender to see if renting out the property is even an option. Some mortgage lenders to not allow subletting your property while you are paying your mortgage, and they will be able to take legal action to stop it. If you rent out your property without the permission of the mortgage lender, they can assess fees against you and even repossess the property. Finally, if your ex has been collecting rent, you can request half of the money collected, and you need to take legal action to get your portion, at minimum within the divorce proceeding.

If you decide to agree with renting out the property, you need to put in writing how the rent money will be divided in order to avoid lawsuits in the future. If you no longer wish to have any involvement in the property, you can file a quick claim deed in your county courthouse to have ownership rights transferred over. However, it is advisable to first ensure that your spouse removes you from any loans associated with the property before you relinquish your legal interest. Once you’re divorced and legally removed from the deed and any mortgages, you can be free of any further liability with the property.

Important Things to Know

Each state has its own laws governing how property is handled during a divorce. Illinois law requires that the division be equitable and fair, but note that this does not always mean “50-50” as many assume. As discussed above, it also depends on if the property is marital property or separate property. Just because property was acquired before the marriage does not always mean it stays separate property either, as sometimes marital property gets mixed together with separate property, causing a conversion to marital property. . If you are unsure about your property rights during a divorce, you need to seek the advice of a qualified divorce attorney to protect your rights.

Understanding property laws, marital law, and division of property during a divorce is not an easy task. You need the advice of a qualified attorney who practices in real estate law and divorce law. At Sherer Law Offices, our attorneys will advise you through the entire process so that you can get through this difficult time.
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Did My Divorce Invalidate My Power of Attorney?

What is Power of Attorney?87697988

There are basically two types of Power of Attorney or POA. The first is “Immediate” and the second is “Springing”. An “Immediate” power of attorney becomes effective as soon as the person you have designated as capable of managing your financial affairs signs the document in the event you become incapacitated. This person then has immediate rights to act on your behalf for all financial and legal decisions decreed within the document.

A “Springing” Power of Attorney becomes effective when you become ‘incapacitated’, and exists primarily as a Power of Attorney for health care. This document allows a designated person to make medical decisions on your behalf in the event you no longer are able to speak for yourself. These two documents, along with a living will, outlines your wishes for your continued medical care and makes sure that your health and financial matters remain in the hands of the trusted person or persons that you choose.

Powers of attorney are fashioned to allow a person, or the agent, to care for financial transactions for the person being cared for, or the principal, from handling banking transactions to maintaining a safe-deposit box. POAs are written to be general or can be defined by outlining special circumstances. A power of attorney generally is terminated when the principal either dies or becomes incapacitated. A principal can revoke power of attorney at any time.

While healthcare POAs are considered ‘Springing’ functions, and most financial POAs are ‘Immediate’, concerns do exist if you leave your decision unchanged in a divorce.

Does a Divorce Invalidate My Power of Attorney?

Power of Attorney designations do not automatically end when you get divorced in most states. If the document was created in: Alabama, California, Colorado, Illinois, Indiana, Kansas, Minnesota, Missouri, Ohio, Pennsylvania, Texas, Washington, or Wisconsin, the POA is terminated. The remaining states however, must have additional communication to revoke the existing POA.

In Illinois a divorce decree revokes such a designation. In addition, if you want your ex-spouse to remain your agent, you must execute a post-divorce Power of Attorney. In all states, an agent spouse can use either power of attorney before formal revocation and/or final decree.

POA Best Practices

Revoke your power of attorney in favor of your spouse as soon as you file for divorce, or earlier. By doing this, you will avoid any complications with your spouse using the power of attorney as you go through divorce proceedings. Have your attorney prepare a new POA, specifically revoking the former POA that is in favor of your spouse. Communicate your revocation to your agent-spouse, which alerts your spouse to his/her liability for damages.

Alert your divorce attorney to your estate plan; you may consider contacting an attorney who also practices in estate planning to make sure your estate planning is properly carried out.

Contact all institutions who may have your old POA on file, to include: medical facilities, financial institutions, etc. These parties can continue to rely on the previous document until they are notified, so make sure you alert them to the change of POA.

Every person’s situation is unique to individual circumstances. Our advice to you is to consult with your divorce attorney and seek additional counsel from a qualified estate planner should you question the validity of your POA following divorce. Do not hesitate to contact the Law Offices of Barbara Sherer for a consultation. We are more than happy to help determine any modifications you might need to make to your estate plan in an effort to keep it in line with your wishes.

How Does the Probate Process Work?

Gavel and Small Model House on Wooden Table.The probate process in Illinois is a legal procedure supervised by the court that is sometimes needed after the death of a loved one. It is used to make it absolutely clear who will inherit the property of the deceased and to make sure that all of their taxes and debts are paid. The executor of the estate usually handles probate. This person must prove in court that the will of the deceased is valid. They must identify and take inventory of the assets, have the assets appraised, pay the taxes and debts, and distribute what is left as the will dictates.

Is Probate Necessary?

Whether probate is required or not really depends on what assets there are and how the deceased person held the title to those assets. The validity of the will does not necessarily influence the need for probate. Usually, a formal probate hearing is required in Illinois if the deceased person had sole ownership of assets, and if all of the assets combined are worth more than $100,000.

There are some assets that do not need to go through probate, including:

  • Assets that are held in trust,
  • Assets that are owned jointly,
  • Assets that are subject to beneficiary designation,
  • And real estate that is subject to a transfer-of-death deed in Illinois.

Affidavits for Small Estates

When the total value of an estate is less than $100,000 and does not include any real estate, a formal probate hearing is not required. Whoever inherits the estate is able to use a simple affidavit (sworn statement) to claim the inheritance.

A standard affidavit is a few pages long and all you have to do is fill in the blanks. You just need to provide the basic information about the person who passed away and state that there is no probate hearing in process and the funeral expenses have been paid in full. It must also say if there was a will. If there is a will, you must provide a copy along with your affidavit.

Formal Proceedings for Probate in Illinois

Probate cases in Illinois are handled by the Circuit Court in the county where the deceased person was living. The executor of the estate (as named in the will) is responsible initiating the probate process. If a will does not exist, someone will have to take responsibility and ask the court to appoint that person as “administrator” of the estate. The administrator will then do the same job as the executor.

To begin probate, the executor files the will with the court. If necessary, a probate case is opened by filing the appropriate documents. Generally, the executor hires a lawyer to draw up and file the proper papers. A notice about the hearing has to be sent to all the people named as heirs in the will. To inform creditors, a notice is published in the local paper.

Unless there is a problem with the will, which is a rare occurrence, the court will submit the will to probate and the person named in the will is then officially appointed as executor. The probate process gives the executor authority over assets. Most executors are granted “independent administration,” allowing actions without prior court approval. If the heirs are fighting, however, then “supervised administration” may be enforced and the executor must get court approval before any action is taken.

Debts and Assets

During probate, the executor has to take inventory of estate assets and safeguard them. It is sometimes necessary for the executor to sell some assets. The executor is responsible for taking assets or the money from the sale of assets to pay debts, such as funeral costs. The executor must also inform creditors of the probate case. The creditors have six months to file a claim. If they miss the deadline, they don’t get anything.

Tax Requirements

An estate in probate is taxable and separate from the person who passed away. The executor has to obtain a taxpayer ID number from the IRS for the estate. This is used to report income and deductions during the estate’s administration. Federal and state tax returns need to be filed for the estate.

For the year 2015, an Illinois estate tax return is due if the value of the estate is more than $4 million. A Federal estate tax might be due if the estate is valued at more than $5.43 million.

Contesting the Will

Probate cases are typically are finished in less than a year with the completion of all required paperwork. If the heirs fight about the assets, probate can take much longer and be much more costly. If a court battle erupts, it is usually over the execution of the will, confusing language in the will, claims from creditors, the executor being accused of wrongdoing, or someone claiming that the deceased person was influenced or did not have the mental faculties to write the will.

Estate Closing

In order to officially close the estate, the executor needs to file a final accounting document that shows how the assets were handled. It will list the assets, income that was generated by the estate, amounts paid for expenses and debts, any expenses paid for administration, and amounts that were distributed to heirs. The document will also show how the executor will distribute the rest of the estate property. When it is time to close the estate, the executor will submit a final report to the court and obtain receipts from the heirs who received assets.

When probate is necessary, the legal team at Sherer Law Offices can help you navigate the process and provide support if disputes arise. Plan ahead and hire an experienced probate attorney as soon as possible.

CONTACT Sherer Law Offices to schedule a legal consultation.

Do I Need a Financial Power of Attorney?

670px-Write-a-Medical-Power-of-Attorney-Step-4If you have income or property, a Financial Power of Attorney can be an essential tool for you. It is especially important if you are ill and are worried that your illness may hinder you from handling your own financial affairs.

Why Should I Sign a Financial Power of Attorney?

Signing a Financial Power of Attorney will assign someone you trust to handle your finances should you become unable to do so. They will be able to pay your bills and do any banking that is required, and handle insurance benefits and paperwork for you.

Will It Help to Avoid Conservatorship or Guardianship Hearings?

If you have a Financial Power of Attorney in place, your loved ones will not have to go to court to be able to take over your financial matters. These proceedings can be very expensive and can also become public record that may be published in the newspaper. Relatives often fight over who should take control of your finances. To avoid the embarrassment and ugly public fighting, not to mention the expense, you will want to have a Financial Power of Attorney in place well in advance.

Do You Fear a Family Fight?

Once you finalize your appointment for your Financial Power of Attorney, anyone choosing to challenge it will be fighting a battle they will not likely win. If you suspect that your family might challenge your decision, a guardianship or conservatorship might be an option to consider.

If you do not have someone you trust well enough to appoint as your agent for a Financial Power of Attorney, a guardianship or conservatorship, with added court supervision, could be set up as an alternative. This is something that should be discussed with a trusted legal advisor.

What if I am Married?

If you are married, you might not think that you need a Financial Power of Attorney, but this is not the case. Your spouse has some authority, but it is limited. For example, if you have property that is in both of your names, then you both must agree to a sale. This includes cars and property. A Financial Power of Attorney will give your spouse permission to sell joint property if necessary. If there is no p Financial Power of Attorney, your spouse won’t be able to do anything without first going to court. This is also true if the property in question is in your name only.

What About a Living Trust?

A living trust can be helpful if you become unable to take care of your financial matters, but it is not a substitute for a Financial Power of Attorney. The trustee that will allocate the trust property after your death also has the authority, in most cases, to take over managing the trust property if you become ill.

However, the trustee does not have authority over any property that is not held in the trust. Not many people put all of their property in a living trust, such as real estate or securities. They usually only put things in a living trust that would be expensive in the probate process.

A Financial Power of Attorney is a legally powerful document. For more information on setting up a Financial Power of Attorney or if you would like to know more about your options, CONTACT Sherer Law Offices for a consultation.

How to Get Your Affairs in Order

office tableMost people really don’t like to think about making a will. They don’t like talking about a DNR (do not resuscitate order). And they really don’t like to talk about planning a funeral. But it is advised that ALL people plan for these events, and when you live alone or become terminally ill, these items become even more urgent.

While dealing with the emotional stress and the medical decisions of a serious illness, you still have to manage other logistics. Though troubling, these issues really should be dealt with now so that you or your loved ones don’t have to deal with them later. Don’t let time run short. Get everything in order now, the way you want it.

The following is a list of items you will want to take care of to get your affairs in order:

Making Out a Last Will and Testament

Over 50% of the adults in the United States do not have a last will and testament. However, it’s necessary even if you don’t have anything to divide among your loved ones. Those who pass away without a last will and testament leave their family to deal with probate court while they are still grieving.

Drawing up a last will and testament may not be difficult for some individuals, but it is always best to consult an experienced attorney to help you write it. The cost for creating the will with proper legal documentation is sure to be less expensive than the mistakes that might otherwise result from trying to do it yourself.

Advance Directives

An advanced directive is also known as a living will. It dictates what you want done, or not done, when it comes to making decisions to prolong your life. This is where the DNR comes in. It is a very important and legally binding document that should be properly prepared to state your wishes.

Durable Power of Attorney for Health Care

When you designate someone to be your power of attorney for health care, this does not mean that you give up any power to make your own decisions. But there may come a point when you cannot speak for yourself. The person entrusted to speak on your behalf should have a copy of your advance directive and know your specific wishes regarding the kinds of lifesaving measures you do and do not want. Your lawyer can help you draft this document.

Financial Power of Attorney

Creating a durable power of attorney for your finances is highly recommended for everyone with income or property. It is particularly important if you are worried that looming health problems could impair your abilities to manage your own financial matters.

A durable power of attorney will make sure that someone you trust will be assigned to manage the numerous practical, financial responsibilities that are expected to arise if you become unable to handle them yourself. For example, deposits must be made to the bank so that bills can be paid. Someone must also handle your benefits and insurance paperwork. Other matters that will likely need attention include managing investments and handling repairs to property. A durable power of attorney, in most cases, is the most highly recommended solution for taking care of such financial matters.

Instructions for Your Funeral or Memorial Service

When a loved one passes away, the grieving family members must often think very quickly about funeral plans. In the immediate aftermath of death, it can be very difficult to focus on these details. When getting your affairs in order, sit down with someone you trust and write down all the things that are important to you about your funeral, memorial service, and whether you want to be buried or cremated. You may also enlist the help of a funeral home of your choice to get these things prepared.

This will save your loved ones the stress of having to make these types of decisions themselves. And when they know that your wishes are being fulfilled, it can encourage a greater sense of peace about your passing.

The experienced attorneys at Sherer Law Offices provide sound legal advice for getting your affairs in order.  CONTACT our office today for a legal consultation.

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