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 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.

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.

What Not to Do When Getting a Divorce

divorce_2147804bAnyone who has been through it can tell you: divorce is not easy. Tension is high and couples can make bad decisions in the heat of the moment. With the vast amount of financial, emotional, and practical details that have to be sorted out, it’s not a surprise that some couples make critical mistakes with their divorce.

That being said, there are many key things you should do, or not do to make sure you don’t regret you choices later. Here are some things to avoid when filing for a divorce.

Don’t Forget to Change your Will

A will does not automatically get revoked when you get a divorce. If you don’t want your soon-to-be ex to receive any of the benefits given to them in your will, you need to change it. This can be done at any time. Be aware, however, that if you happen to die before the divorce is granted and your spouse has nothing left to them, they can sue and recover part of your estate.

Don’t Dismiss Collaborative Divorce or Mediation

Collaborative divorce is when you get the help of professionals, such as attorneys, divorce coaches or therapists to help you through the divorce process in an effort to minimize conflict. They can help to divide property and manage your emotional stress. In most cases, a collaborative divorce will be much less adversarial than traditional divorce.

Mediation is different. Only one person (a divorce mediator) helps you and your spouse reach an agreement. Medication is usually an on-going process rather than a one-time intervention. Paid lawyers are usually not allowed in a mediation meeting, but you can consult your lawyer at any time during the process to make sure you are getting a fair result.

Do Not Take it Out on Your Children

Your children need to be in a supportive environment to deal with the stress of a divorce. Minimize discussions with them about the process. This will allow you to have more time with them and refocus your energy on attending school events, helping them with their homework, or taking them out to see a movie. If you are relaxed, they will be more relaxed. Even though you should be comfortable talking about divorce with your children, the idea of the divorce is to relieve the stress that you and your family have been experiencing.

Do Not Refuse to See a Therapist

It is highly recommended that you see a therapist to help you deal with the range of emotions that you will experience as you go through your divorce. Get help before you become extremely depressed or angry. A therapist is not only someone you can talk to, they can also show you how to relax, talk to your kids, and how to remain calm when you are in court.

Don’t “Settle” Too Soon

Just because you want to end your marriage as quickly as possible, doesn’t mean you should give up your financial security. Make several copies of your important financial documents like pension statements, tax forms and credit card statements. It will help you keep track of what you receive and what you owe. Make sure you and your children will have continued health coverage during and after the divorce.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases for more than 20 years. We will take the time to listen to your concerns and help to protect you best interests.

CONTACT us today for a legal consultation.

Do I Need a Special Needs Trust If I Have a Child With Special Needs or a Disability?

Special-Needs-Trusts-resized-600.jpgParents who care for a child with a physical or mental disability know how much that care can cost.  For this reason, parents need to create a plan to make sure that their child will continue to be properly cared for if both parents pass away.

The government may provide for the basic needs of the child such as food, clothing, housing and health care through Supplemental Security Income (SSI) and Medicaid, but what about extra expenses that would benefit the child’s quality of life? This is where a Supplemental Needs Trust comes in.

What Is a Supplemental Needs Trust?

A Supplemental Needs Trust, (sometimes called a Special Needs Trust) is a legal document that is designed to help a person who has a disability. This Trust is called a “stand alone” document, but it can also be part of a Last Will and Testament.

Supplemental Needs Trusts have been used for many years. They are used to benefit an individual who is under the age of 65 and disabled according to Social Security guidelines. Each Trust is its own “entity” with its own Federal Identification Number issued by the IRS. The Trust is not registered under the parent or child’s social security number.

What Can a Supplemental Needs Trust Be Used For?

According to law, the Trust can be used for “supplemental and extra care over and above what the government provides.” In other words, the Trust provides additional benefits beyond what is covered by government programs for the disabled. For example, if a beneficiary falls into the Medicare “doughnut hole,” a Special Needs Trust will make up for the shortfall.

Why Create a Supplemental Needs Trust Instead of Leaving Cash?

We do not recommend that you plan to leave a large sum of cash for your special needs child in the event of your passing.  If you don’t plan carefully you could jeopardize the ability for your loved one to collect the government benefits to which they are entitled.  Just having cash in the bank will disqualify your loved one from receiving SSI or Medicaid.  To avoid this situation you must set up a Special Needs Trust.  You will also need to choose a trustee to be in charge of the money.  With a trustee in charge, your loved one will not be in control of the money; therefore, SSI and Medicaid officials will ignore the Trust when determining your loved one’s eligibility for benefits.

Be aware that a Supplement Needs Trust is different from other types of family trusts. An experienced lawyer will explain that a general trust would not be appropriate for someone with special needs because it would not address the specific needs of the disabled person.

What Must a Supplemental Needs Trust Say?

At a minimum, the Trust should say that it is for the sole purpose to provide “supplemental and extra care over and above what the government provides.” The Trust must also state that it is NOT intended to be a Basic Support Trust.

When Should I Create a Supplemental Need Trust?

The Trust can be established at any time before the beneficiary’s 65th birthday, but it is best to create the Trust early in a child’s life. A Supplemental Needs Trust is an excellent estate-planning tool that serves as a long-term solution for holding assets to meet the needs of a disabled family member.

Can Any Lawyer Create a Supplemental Needs Trust?

A parent who wants to plan for the maximum benefit of their special needs child is advised to consult a lawyer that specializes in special needs issues. A Trust can be easily “invaded” by the government if the proper language is not used in writing the Trust. A poorly written Trust can cause a loss of benefits and a host of serious legal issues for the beneficiary and the trustee.

Supplemental Needs Trusts can be very complicated. If you are considering setting one up for your loved one, call 618-692-6656 or CONTACT one of the experienced family law attorneys at Sherer Law Offices to schedule a legal consultation today.