What are your vital estate planning documents?

Your vital estate planning documents are either a will or a living trust, power of attorney (property and healthcare), and a pour over will (if you have a living trust).

Most people think about estate planning and they think about a will. Unfortunately, a will has many weaknesses and does not avoid probate court. Probate court is a court which hears claims in Cook County, Illinois that addresses inheritance issues such as who shall inherit your assets. With a will, your loved ones must still undergo the probate court process, which suprises many people. Unfortunately, there are many occassions where it is not cost-effective to go through probate court. With probate court, one must usually hire an attorney, pay court costs, and wait a long time before the court process is complete. Generally, it takes one year to one and half years to complete the probate process.

Unlike a will, a living trust avoids the costs and expense of probate court. A living trust is a private document unlike a will. A living trust is essentially a written document that expresses your wishes upon your death. In contrasts to a will, a living trust is similar to creating a fictional person that owns your assets. Practically speaking, your living trust is very similar to you own your own assets because you can revoke the living trust. Thus, you have control over the assets and can do anything you could do prior to having a living trust. The difference is with a living trust, you are the trustee and your assets should be owned by your living trust. Thus, your house should be transferred to your living trust. This way your living trust upon your death distributes your property without a court process and minimum interruption.

The second fundamental documents other than a will and living trust are a power of attorney. In Illinois, there are two types of powers of attorney. A power of attorney for healthcare and a power of attorney for property. With a power of attorney, you appoint an agent to make decisions for you in case of a disability. Having powers of attorney are critical because otherwise, you or your loved ones may have to undergo a guardianship proceeding if your loved one becomes incapacitated without having a power of attorney.

The third fundamental document is a pour over will if you have a living trust. A pour over will is a will that transfers all of your assets to your living trust. The purpose of the pour over will is to transfer any assets that you own to your living trust in case you did not properly title these assets while you were living.

Sean Robertson is an estate planning and elder law attorney in downtown Chicago. Sean Robertson may be reached at (312) 498-6080. Our website is www.RobertsonLawGroup.com.

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