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Illinois probate lawyer, Illinois elder law attorneyIt is never too late to plan for the future unless of course, you are reading this from beyond the end of your life. Many begin estate planning at a major life-altering milestone, such as a marriage or the birth of a child. However, this is not always the case. Many live decades with large families and vast estates and have shied away from the thought of passing away and what will happen to the things left behind. Although it may be a bit of a morbid topic to discuss, those left behind will greatly appreciate the care taken to create an estate plan, and doing so saves money in the long run.

What Is an Estate Plan?

Everyone has an estate, regardless of the size. It may be coins in your pocket and the clothes on your back, but that is a part of an estate. Anything you have accumulated within your lifetime, be it real estate, business acquisitions, or an amazing shoe collection is a part of your estate. An estate plan is the written document of who gets which items and at what point and under what conditions. Many times, this helps to lower the costs of taxes, legal fees, and court costs.

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Illinois probate law, Illinoisestat attorneyThe end of someone’s life is emotional. Sometimes, loved ones spend as much time as possible enjoying the time remaining. Often the last thing families may think about is the location of the will. Once the decedent passes, there may be a detailed search through the home to locate the will that your loved one discussed. Perhaps someone even mentioned seeing the document and having read it at one time. Without the will available, how can your loved one’s final wishes come to fruition? Loss of the will can result in a probate litigation situation.

Seeing Is Believing

Although it is true that the probate process is significantly easier with the existence of a will, it is not necessary. If the will is not able to be found, the presumption is the will was revoked and not replaced. There is no legal process to revoke a will; the benefactor simply needs to destroy the original copy, and the document is no longer valid. However, under certain circumstances, it is possible to probate a non-revoked will. There must be clear and convincing evidence that the original will is valid, although not present.

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Illinois estate planning attorney, Illinois probate lawyerCircumstances change in the blink of an eye. Tomorrow is never a guarantee. Therefore, it is wise to have a will in place to declare what should happen to your assets if you pass away. If a will is already in place, it is important to revisit it on a regular basis and during major life event changes to ensure that the intended person is the beneficiary. If a change is necessary, it is important to modify the will. Occasionally, a life change occurs requiring the will’s revocation. Revocation ultimately changes the probate process.

Why Would You Revoke?

After the hard work you put into creating the original document, why would you throw it away and start again? Without the paper in hand, the document is no longer enforceable and is presumed revoked. For small changes, such as including property or removing names, the original documentation will suit fine after modification. However, there are instances where it is easier to scrap the original and start from scratch. Examples of when revocation becomes a viable option include:

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Illinois probate attorney, Illinois elder law attorneyA power of attorney (POA) is a legal document that enables someone you trust to act on your behalf. Legally speaking, this person can sign your name and act as though they are you with this notarized record. Many times these are used when someone is no longer able to complete transactions themselves due to illness, inability to travel, or distance. A POA can be as strict or open as the creator intends. If the principal signing over the authority is not careful, the agent acting on their behalf can wreak havoc on finances, leaving the principal to pick up the pieces. The practice of misusing a POA constitutes an estimated 60 percent of elder abuse.

General Power of Attorney

POAs are necessary and beneficial to many elderly individuals by enabling a capable individual to take care of important activities. However, rather than handing over complete control, limiting authority is a better solution. A general POA document lists all potential powers, and the principal is required to draw a line through the powers they do not wish their acting agent to have. Without this step, the agent has the full legal capability to act in the following transactions:

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Posted on in Family Law

Illinois divorce attorney, Illinois custody lawyerDuring a divorce and child custody battles, every action occurs under intense scrutiny. With the rise of social media, divorce litigation has a proclivity to become exponentially uglier with the inclusion of each intricate detail of one’s daily life. We all know well enough by now the havoc that an ill-perceived post can wreak. During a divorce, when child arrangements, property division, alimony, and other issues are at stake, it is essential to temper the nature of posts. However, posting something and then deleting it causes similar difficulties in divorce cases.

Questionable Behaviors

Although Illinois once stood by the traditional requirement for grounds for divorce, lawmakers have gone to a completely “no-fault” divorce method. Now, there is no waiting period for divorce and a splitting couple can merely cite “irreconcilable differences” to have grounds for the divorce. Guilt for adultery, abuse, or habitual drunkenness does not have an impact in most divorce settlements anymore, however, in regards to children, a fault can significantly alter the outcome. Faults that may hinder a custody hearing are:

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Illinois probate attorney, Illinois estate lawyerWe cannot always predict when ourselves or a loved one will pass away. Even if someone is happy and healthy, an unforeseen scenario may unfold, leaving those left behind grieving. In addition to the natural grieving process, those closest to the decedent often gain the burden of responsibility for determining what to do with the possessions left behind. A will or trust significantly assist the probate process if either is available. What happens if the beneficiary of either document is a minor?

The Child Is a Trust Beneficiary

A child under the age of 18 is considered a legal minor, in most cases. In the state of Illinois, a child cannot own property in their name. Therefore, if a child is named as the beneficiary of a trust, any included property needs to be managed by an adult until the child reaches the legal age and can handle it for themselves. The responsibility lands on the trustee named in the document and the funds or property are distributed according to the requirements listed in the trust. The creator of the trust is not bound by court discretion when determining the terms of the trust. Asset distribution has potential restrictions, such as:

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Posted on in Family Law

Connecticut child custody attorney, Connecticut family law attorneyWithin the last few decades, cigarette consumers have gone from being idolized to almost demonized. The downfall began in 1970 when Congress passed their Public Health Cigarette Smoking Act which banned the often playful advertising of cigarettes on radio and television. Cigarette consumers have gone from the spotlight to hiding in private places, and even some of those are under attack. Now, what is already an expensive habit may become a bit more pricey. If a recent proposal comes to fruition, if you smoke in the car with your child present, you may face abuse charges leading to adverse effects during divorce litigation and child custody arrangements.

The Proposal

The proposal Connecticut HB 5453 discussed in February of 2016 suggested:

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Illinois elder care lawyer,Illinois probate attorneyWhenever the decision to enter an elderly family member into a long-term care facility, questions race through our minds about the care received at each location. Lawmakers set out to give peace of mind to residents and their families by creating laws surrounding the care to which each is entitled. The Nursing Home Care Act in Illinois protects the rights of our loved ones while they are in the direct care someone outside of the family. The law carefully preserves these privileges, from the ability to wear their clothes instead of a nightgown to their financial rights, and more. Over the years, many laws make adjustments, and the same holds true for elder law. Once again, a change has come to the Nursing Home Care Act.

Rights Granted to Residents

Two resources provide rights protection for residents of nursing homes in Illinois, including the Illinois Nursing Home Care Act and the Federal Nursing Home Reform Act. The unique combination of the two laws empowers those in use of the services provided by long-term care to defend their rights before the court. A few of the protected privileges include:

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Illinois divorce lawyer, Illinois family law attorneyDivorce affects everyone differently. The recovery period is lengthy and arduous for some individuals, leading to a choice to stay single for an extended period. Others choose to begin a new relationship with a new romantic partner as soon as possible. Are either option preferable during divorce proceedings? If you hesitate to explore new possibilities, are you more likely to come out “on top?" Will you face penalization for a dinner date with that new love interest?

Is Dating Legal?

Any spouse, regardless of guilt of any perceived wrongdoing, may file for a dissolution of marriage. With regards to the outcome of the proceedings, the traditional fault grounds tend not to make a significant difference. However, behavior such as bigamy and adultery still influence the outcome of decisions surrounding child support and visitation orders. Although it is not illegal to date during a divorce, our advice is to proceed with caution.

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Illinois elder law attorney, Illinois probate lawyerWith the new year comes significant changes to several pieces of legislation in Illinois. Elder law is not exempt from these changes, although most are minor. One specifically is important to the families and patients residing in long-term care facilities. If the resident has a roommate, the new regulations provide for the comfort and safety of both residents, going so far as requiring the establishment to remove or disable any monitoring devices. Let us explain in further detail.

House Bill 5603 Explanation

As of January 1, 2017, authorization from the roommate in a care facility must be received before the use of any audio, video, or combination recording devices within a shared room. If the roommate denies consent and the approving resident refuses to disable or remove the device, the facility by law must deactivate or remove the equipment. In requesting authorization, the following information is obligatory:

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Illinois divorce attorney, Illinois probate attorneyYou have an estate, regardless of whether you have planned for it or not. An estate is everything you own, from your vehicle to your home and everything inside of it. Your property also includes the comparatively small items, such as your dishes and tool set. When you pass away, you cannot take it with you, and the pieces do not just vanish. The items have to go somewhere. The basis of an estate plan is to determine while you are living what happens with your belongings after you pass. During a divorce, any estate plan previously created needs reconsideration.

Automatic Alterations

Under current Illinois regulations, there are measures in place to protect your estate after a divorce. Automatically, Illinois laws make changes on your behalf. After a divorce finalization, regulations revoke anything that named your now ex-spouse as a beneficiary. While this protects you from the often costly error of forgetting to transfer benefits away from someone to which you are no longer legally bound, it does not designate to whom the items should go to instead. If this is the situation, the probate process will commence as though there were never any will set in place. It is your responsibility to update any documents to include the new recipient.

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Posted on in Elder Law Litigation

Illinois probate law, Illinois elder law attorneyA power of attorney (POA) is a valuable legal document enabling one individual to act on behalf of another. There are various degrees of control with these papers ranging from allowing someone to initial utilities under your name to building and buying a brand new home. Therefore, it is important to have the correct power of attorney for the situation. Many have trusted others with a power of attorney for their healthcare decisions, and these individuals have abused their power. Although mishandling a POA is not physical violence, it is still caregiver financial abuse.

Specifications to Include

A power of attorney is a powerful instrument to allow an individual to take care of legal matters for you in your stead. If you are injured and away from home, giving someone this authority allows them to access all accounts as though they were you. Therefore, if they want to pay your bills, they can find out how much is owed and make payments. However, with the proper POA, they can also transfer all of the money from your bank account into theirs and close your account. A bank cannot stop them from doing so if they have a signed power of attorney. These are a few variations to consider:

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Posted on in Guardianship

b2ap3_thumbnail_guardianship.jpgThere are a wide variety of scenarios in which a guardian would be useful or necessary. From a small child who has lost their parents to an adult who is unable to discern the correct medical treatment. Families often turn to an option for guardianship of the individual during these situations. Knowing how to accomplish this and who is the right choice is essential during this process.

When Guardianship Is Useful

A guardian is an entity that can be predetermined by an individual through the use of a will. This person is instituted to protect a person or their property until such time that they can do it themselves. Additionally, a guardian may be elected by Probate Court if no one is named. A person, an institution, or an agency are all eligible to become a custodian. In addition to children under the age of 18 left without guardianship of their biological parents, other instances that require the assistance of others are:

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Posted on in Family Law

Illinois divorce attorney, Illinois family law attorneySignificant, life-altering questions come to mind during divorce. What will happen to the children? Where will we live? Not the least of which is how to divide the property. Although no two marital dissolutions are identical, the conventional methods that judges use during litigation that may help you reach a conclusion. With proper preparation and understanding of regulations, a dissolution of marriage can be less stressful.

Simplify the Process Before It Begins

Either during the beginning phases of the divorce process, even better before the divorce starts, it is best to collect the maximum amount of supporting evidence. These include parenting and financial documents. The short list of ideas are:

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Posted on in Probate and Probate Litigation

Illinois estate attorney, Illinois probate law attorneyIf you have never executed an estate before, you are likely experiencing a broad range of emotions. For one, you may have just lost a loved one, someone near and dear to your heart, therefore are coping with the grieving process. On top of this, you have either just discovered that you were named an executor of the estate trust, or you previously knew and are unsure about how to complete execution of your assigned task. Thankfully, specialized lawyers have extensive knowledge of the subject and can walk you through the process.

Your Mission

What precisely is the role of an executor? The executor is an individual that has been named by the deceased to ensure that their wishes are carried out to the best of their ability once they have passed away. This includes the probate process in which the court requires the following:

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Illinois probate lawyer, Illinois probate lawsRipped straight from the plotline of a movie, heirs to great fortune have been known to “help speed the process” of their predecessors passing. Yes, we mean murder. Although it may sound like something from a fictional storyline, it does happen more than one would think. Once a grieving family determines there is a reason to assume criminal mischief was involved, a call for action is necessary. For these situations, Illinois has a law known as the Slayer Statute.

The Slayer Statute

Anyone who murders someone related closely enough that they would have become a recipient of inheritance should be brought to justice. Many believe that anyone guilty of such behavior should not legally receive the payout. The Probate Act of 1983 set out to establish this law banning any individuals from obtaining any property, benefit, or other interest from the inheritance if they intentionally and unjustifiably caused the death. Those legally prohibited after murdering the benefactor include:

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Illinois probate law, Ilinois probate attorneyAfter someone passes away, the question always remains of what to do with the belongings left behind. With a little estate planning, the solution can be straightforward. Even with the best-laid plans, an unexpected case of negligence or intentional mismanagement can result in lost assets. With the assistance of a qualified and experienced professional, recovering lost assets is an achievable goal.

The Executor

A will and trust name an executor as per the wishes of the deceased. If no will is available, the courts will elect an administrator. Regardless of how the individual was elected, their duty remains the same, and that is to distribute the property and arrange payment of debts and expenses. Other responsibilities include:

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Illinois probate law, Illinois probate attorneyFamilies come in all shapes and sizes, and so do the items they accumulate during their lifetime. There are households with a significant amount of land and garages filled with collectible vehicles, and then there are those who retire to become minimalists with a tiny house. For individuals who have accumulated a significant estate, the probate process must be precise. For decedents who lived a simpler life, a small estate affidavit may be an option.

What Is a Small Estate Affidavit?

Not every situation is required to go through the probate process, such as when the estate was well planned out precisely to avoid probate. Another instance is when the property is considered to be small. If the estate is valued at less than $100,000, the estate of the decedent is small and if it is also uncomplicated, then using a small estate affidavit may be a viable option. If a beneficiary is eligible, the probate process can be avoided and the property transfers directly to the heir.

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Illinois probate laws, Illinois probate litigation attorneyEmotions are on overdrive when someone we love passes away. Typically, loved ones are left with the duties of preparing a funeral, burial or cremation, as well as executing the will and trust, all during their grieving process. Often, emotions do not take much precedence when contesting a will. It is possible to get through the process, so long as the proper steps are taken.

What Are the Right Circumstances?

Belief that a will is unfair will not be enough to contest a standing will. Perhaps you were even verbally told that you were named in the will, but without any hard evidence, it is as if the legal document never existed. Therefore, it is of the utmost importance to be sure that either you have a copy, know where a copy is located, or know the name of the lawyer that drew up the will in order to have any grounds to contest. Additionally, the proper circumstances must exist in order to challenge. A few of the most common reasons for contestation are:

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Illinois guardianship attorney, Illinois elder law attorneyWe do what we can to protect our families and those we love. Trusting those around us is noble, however being safe rather than sorry is advised. Victimization is not a goal for very many people. Previously, we discussed the signs of financial abuse. If you have already noticed the red flags, necessary precautions must be taken to avoid being the victim of caregiver financial abuse.

How to Safeguard Your Family

  • The best way to prevent the caregiver from purchasing personal items is to buy gift cards for the store ahead of time and let them shop with the gift card, that way if there is any fraudulent activity, the liability to your family is small;
  • Combat outsider fraud by running a thorough background check on the caregiver, even if the agency has done so already. Also, secure the family finances and be sure that a power of attorney regarding the finances is on file. Let the banks know that no one else is to be using any accounts your loved one may have. This defends against anyone gathering financial information to use it for themselves;
  • If the caregiver is becoming too intimate with the patient, approach the caregiver immediately. Also, understand that your family member may be reciprocating the attention because they are lonely. Be sure to have several visitors and set up activities so that your loved one has social interaction with others. Furthermore, keep an eye on all of the accounts and if there are unauthorized purchases, the accounts can be immediately canceled and the proper organizations notified of potential fraud; and
  • If you notice an unusual emotional investment in the caregiver, call a family meeting where everyone can discuss the situation. Act immediately because experienced swindlers will be expecting you to pause to evaluate your options. You will also want to contact the agency they work through so there can be further investigation. Acting fast to prevent any sob story payouts can eliminate the opportunity for fraud to occur.

The best defense against this type of deceptive practice is hiring a trusted attorney. Although you may be unsure who to trust after being taken advantage of, having a respected and experienced lawyer can help you get the justice you and your family deserve. We are not saying that all caregivers are fraudulent, but enough exist to be cautious. If you need the advice of an experienced Elgin, IL elder law attorney, The Law Offices of Anthony R. Scifo are here to assist. Call us today at (847) 628-8305 for a free 30-minute consultation.

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