When a person dies without a will, the state statute for the state of that person’s residence take over and direct the disposition of assets, which very likely may not be what the person would have wanted. In Illinois, for example, the estate of a married person with children who dies without a will passes one-half to the surviving spouse and one-half to the children, and if those children are minors, the latest their inheritances can legally be safeguarded is age 21. Creating a will, on the other hand, gives a person the opportunity to voice choices for executor and guardian and to establish some parameters and conditions around the distribution of assets such as holding those assets in trust until a child has attained a more fiscally responsible age.
An executor is a court-appointed fiduciary charged with the administration of a deceased person’s probate estate. When clients create wills, they nominate their choices of executors. However, a person is not, in fact, an executor until a judge enters an order in a probate proceeding appointing that person as executor. At that point, the executor is empowered with the rights and powers of executor as well as the fiduciary obligations of executor. No person nominated in a will as an executor has to accept the role and there are very good reasons a person might not choose to do so: illness, time commitments, lack of knowledge or family discord are some common reasons. Once an executor has been appointed, that person may withdraw as executor and pass-the-torch, so to speak, to the next person nominated, with court approval. If no executor nominated in the will is willing to act, state statute provides a list of priority as to persons who have a right to nominate an executor for the estate.
One of the biggest obstacles to estate planning for couples with young children can be agreeing on who to nominate as guardian of minor children. A guardian is, for all intents and purposes, the person (or people) who will become the pseudo-parents of a child. A will is the proper and legally-binding document to nominate such a guardian. Choosing guardians can feel difficult because it is hard to imagine anyone raising our children, or loving them, quite like we do. Nobody seems good enough. However, neglecting to specify preferences could result in chaos and uncertainty in an emergency and none of us want that for our children. If a guardian is not specified, any number of people who have an interest in your children may choose to petition the court to be appointed guardians and provide the court with their arguments as to why they are the best fit. One of the most responsible things we can do for the people we love is to minimize the chaos and nominating a guardian who, let’s face it, will never be quite as good as you, is just one way to do that for your family.
Probate is a court process of overseeing that the instructions in your will are followed, those to whom you owed money are paid, and empowering someone, an executor, to carry out those duties. Probate sometimes gets a bad rap on the street. It’s not uncommon for clients to ask us how to avoid probate, or bypass probate, altogether. However, having your estate pass through probate doesn’t have to be a terrible thing. Oftentimes, probate proceedings can be handled without the need to ever appear in court and probate sometimes serves valuable functions such as cutting off creditors or providing court oversight of difficult beneficiaries. Probate in Illinois typically takes at least a year to complete, although there are surges in activity and periods of lull. Reasons clients dislike probate usually come down to timelines, additional costs and the fact that all records filed in probate become public records discoverable by anyone who is interested. If clients are particularly concerned with probate, we are happy to discuss ways to avoid it, but bear in mind that probate in itself is not a bad word.
First, grieve. Take time to grieve your loss. There is little to no legal work that needs to take place in the first few days after a person passes away. You are not irreparably damaging the estate if you take a moment to breathe. It is common for us to meet with the family of the deceased anywhere from 1-3 weeks after the date of death. Our best advice for the initial meeting is for clients to bring all “important looking” papers that they can locate among the decedent’s files. Things like statements, policies, tax returns, deeds, and contracts can all be helpful to determining what next steps are needed. It is not uncommon for clients to worry about outstanding bills and debts and how those will get paid in the time between a death and the first meeting. Many times, there is a grace period available but if a friend or family member decides to front the cost of a particular expense, good record keeping is critical for reimbursement from the estate later. Most importantly, you do not need to know all the answers before the first meeting. A large part of what we do at Legacy is helping clients navigate these early stages. Do what you can and we will meet you where you are.
Conversation is key. But sometimes it doesn’t come easily. That’s where we come in. Long before any documents are drafted, there are key conversations that need to occur around the table. You’ve heard the old adage “You cant’ see the forest for the trees.” No truer words were ever said when it comes to seeing the opportunities and threats to your family business. Having a third party who is not emotionally involved in the day to day operations of the business facilitate a meeting for your family can be instrumental to identifying the needs of your family business. We are able to draw on decades of experience with other families who found themselves in situations like yours to illustrate options for what works well… and what doesn’t. These facilitation meetings are intended to gather loads of information about your operation, how it runs, who’s invested and what its future looks like. We’ll listen to each of the voices at the table, spotlight issues and summarize suggestions for moving forward. We’ll work with your family to facilitate communication because we believe it is key to successful transition of business.
People frequently ask if we farm. No, we technically don’t, but Brooke has chickens and lives in the country, so she’s an almost-farmer. All kidding aside, we organically grew our farm practice because we enjoy working with clients who work so hard to preserve their family farm legacies. In fact, they are the impetus for naming the firm Legacy in the first place. With headquarters squarely in east-central Illinois, we are surrounded by miles and miles of some of the richest farmland America has to offer and one-by-one our expertise at farm planning spread. Brooke has formerly served on the board of directors for Illinois Farm Business Farm Management and is a frequent lecturer for Farm Credit in Illinois and in Missouri. Farm clients resonate with us because we truly strive to understand how their operations work, explain things in layman’s terms, and share core values.