Where’s There’s A Will, There’s a Way Estate Planning: An Overview

Written by: Jeffrey Salas

As a fairly new parent, I often find myself around other new parents—at the park, doctor’s office, parties, restaurants etc.  While the conversation usually starts with “How old is your little one?” once they find out that I’m a lawyer, the conversation turns to this: “I think we need a will.”

Why? Without getting into specifics, I generally tell them, yes, you need some sort of estate plan to ensure that your children are taken care of in case the unthinkable happens.  Sometimes it is as easy as a simple last will and testament.  But depending on your financial needs, it can be much more complex.  But the heart of the matter is that you need to make sure you have an enforceable legal document(s) that allows your children to (1) have a definitive guardian in case of your passing; and (2) have your assets protected for your children.

While these documents can take many forms, a simple will is a good start until you have more time to get your assets in order.  A simple will can both name a guardian and create a testamentary trust for your assets to be held for your children.  

What if I don’t have a plan? Dying without a plan is legally known as dying “intestate.”  That means your children and assets are subject to Illinois intestacy law rather than your wishes.  Illinois law would require a judge to appoint a guardian for your children.  Most likely, one of your relatives and/or friends will have to apply to the Court to be your personal representative and/or guardian of your children and/or guardian of your children’s estates.  Less likely, but possible, a few of your relatives and/or friends will apply, and the Court will decide preliminarily, and then permanently, who will be the guardian of your children.  If a battle ensues, thousands (and possibly tens of thousands) of dollars in legal fees will be spent attempting to appoint a guardian.  This is easily solved with even a simple plan.

What do I do now? Make sure you are speaking with an attorney about your options.  Each family has separate needs and issues that the attorney will have to address.  There are self-help options out there.  Either way, make sure you investigate both the lawyers and services that you use for planning for your future.

Posted on December 17, 2014 at 10:24 AM