Avoid Needing a Probate Attorney - Don't Die Without a Will!


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While not the most pleasant topic to look forward to, making out a will can be very important. A will is a document stating who is to receive what, upon one's death.

Intestacy is the will designed by the state. The state we are speaking of in particular here, is Illinois. If you haven't decided whom you want to receive your estate, the legislature has tried to guess what you would have done. It might be better than nothing.

The rules regarding wills vary from state to state, but someone is always needed to administer the estate: this is the personal representative. The statute sets out a list of preferences.

Heirs are people who receive under the state's will. If there is a spouse and no descendants, it all goes to the spouse. If there are descendants but no spouse, it all goes to the descendants. Children of a deceased child get the child's share. If there is no spouse and no descendants, then the estate goes equally to siblings and parents (but if there's only one living parent, then that one gets a double share).

If those state-determined ways are not the way you want it to turn out, then change it. Make sure to consult with a Chicago probate lawyer about your actual wishes! Don't leave it up to the state when a good probate attorney could help you out. Even if the state-designated will comes out the same way an individual would have wanted, there's the issue of bond and surety. Every representative has to sign a bond, promising to faithfully manage the estate and agreeing to be personally liable if they don't. This representative is required to provide surety - security that they will fulfill their bond. This is usually done by paying an insurance company to back them up. So if someone only has his wife, who is named representative and will inherit the entire estate - she's still required to provide that bond and surety. A will can waive that requirement of surety.

To make matters even more complicated, if a minor receives more than $50,000, a minor's estate must be opened. This requires annual accounting and court appearances, plus obtaining the court's permission for expenditures. If the inheritance is under $50,000, more flexibility is offered by using a Custodianship under the Illinois Uniform Transfers to Minors Act. In either case, the minor gets the money at 21.

If you design your own will, and estate lawyers would say you should, you may name whomever you wish as personal representative; may waive surety on the bond, and may leave your estate to whomever you wish, subject to your spouse's rights. You may also provide for trusts, or extend the ages at which your children get their pieces of the pie (if you left them any). You may make the Custodianships available for more than $50,000 without a minor's estate; can plan for reducing taxes, and engage in long-term planning.

With regard to spouse's rights: your spouse has two sets of rights. First, they can receive an award to support them, and dependent children, through the probate proceedings. This is in addition to the will, unless the will indicates otherwise. The other right is the right to renounce the will - to take a share regardless of what the will specifies. The spouse may force a 1/3 share, but in so doing, they will give up any benefits under the will.

For discussion of wills and other estate planning matters, contact an estate planning attorney near you for a consultation.

Kathy Hildebrand is a professional writer who is easily bored with her “day job" assignments. So, she researches anything and everything of interest and starts writing. Writing about an extremely wide variety of subjects keeps her skills sharp, and gives her food for thought on future paid writing assignments.

More of her research and articles can be found at www.lasertargeted.com/probateattorney and other sites around the internet.


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