Never has the phrase “no time like the present” been more true than right now. For many, estate planning is something you do so that when you’ve reached your golden years you can rest easy knowing your assets will be handled properly after you pass on. None of us wants to think of the “plan” in estate planning as something that will come to fruition in the next few months. But we can’t ignore what’s going on around us, especially those in the high-risk categories including the elderly and those with multiple comorbidities.
Please know, this is not a medical blog, any information on the Coronavirus and Covid-19 are gleaned from the Centers for Disease Control, The World Health Organization, the Illinois Department of Public Health, and the Iowa Department of Public Health.
As of writing this, the Iowa Department of Public Health has listed 145 confirmed cases, with the highest number being in Johnson county, while the Illinois Department of Public Health has listed 1,535 confirmed cases, with the majority concentrated in and around Cook county.
The coronavirus is not an illness to be dismissed. Between its aggressive transmission, high rate of contagiousness, and higher risk for serious illness or death for those above 60 we must prepare ourselves for the worst-case scenario. Furthermore, many coronavirus style viruses are seasonal and while we all hope to be out of the woods come summertime, the possibility of a surge of infections, serious illnesses, and death in the winter and fall is at worst very likely, and at best unpredictable.
Whether it’s in a few weeks, a few months, or a year, we will begin leaving our houses, returning to restaurants, sporting events, and busy vacation sports, and the risk of the coronavirus will likely still be there. But, we can hold onto some certainty knowing that if we end up being of the unlucky ones at least we took the extra step of getting our assets in order and reviewing our estate plans.
Illinois or Iowa Last Will and Testament
When was the last time you reviewed your last will and testament? Is it up to date? Have there been any major changes regarding the beneficiaries? Do you even have a last will and testament? Without a will or trust, your estate will be subject to a lengthy probate process, possibly holding up much-needed funds or transfer of property during a very uncertain time.
Maybe you’re thinking about just writing down everything on a piece of paper and putting it in a sealed envelope? Unfortunately, Illinois does not recognize holographic wills. A holographic will is one handwritten or typed by the decedent (deceased owner of the will), but not witnessed by two or more individuals. Even if the will is prepared with the help of an attorney, if it is not signed and notarized with at least two witnesses it will be invalid in the state of Illinois. Iowa probate law follows the same rules and does not accept oral or holographic wills.
There is cause for both younger, older and everyone in between to review their revocable living trust at this time. Beyond the potential of falling ill with Covid-19 due to the coronavirus, if you’re life has changed in a major way, such as having a child (or additional children), or if you’re older and your beneficiaries have changed for whatever reason it’s important to update your living trust.
Maybe you’ve bought a new income property, and you want it to benefit your beneficiaries, but you don’t want them receiving it outright, but rather held in a trust or spendthrift trust to act as a protected stream of income. Are the beneficiaries adults or still minors? If your trust doesn’t account for what happens when minors inherit property or money (setting up a trustee or guardianship) you’re forcing that beneficiary to deal with unnecessary legal hurdles during a potentially stressful time.
Did you designate an alternate trustee in the case the primary trustee becomes ill or dies and cannot distribute your assets? Did you fund your revocable living trust? It is not enough in the state of Illinois or Iowa to simply draft the trust and have the proper signatures—although getting that far is very important and gives you a lot of protection—the trust must be funded with whatever property and assets over a certain amount that will be transferred upon the trustee’s deaths. Being funded basically means having proper language indicating the transfer of property and assets to the trust and notifying the appropriate financial institutions of the transfer. If you got your trust all set up, but can’t remember if you did this last step (some attorney offices handle this for an extra fee and some don’t) you can call your attorney and they can explain what needs to be done.
A durable power of attorney is an important part of your overall estate plan, especially if you own a business. Should you become incapacitated due to the coronavirus, the durable power of attorney designates an agent to make financial decisions in your place. Having this document in your estate plan is also important if you’re an elderly person who requires day-to-day assistance.
Usually, this person is a family member or spouse. This person makes medical decisions regarding your health, should you be unable due to illness.
Are you a single parent? Or do both parents work in public jobs or high-risk jobs? Even if the answer to these questions is no, it’s still important to have someone who can take your child to the doctor and make medical decisions for him or her. Beyond being too ill to physically take your child to the doctor, testing positive for the coronavirus and being quarantined may leave you with no one else who has the authority to legally take your child to the doctor and make medical decisions.
Lastly, unless you really don’t like the idea of being on a ventilator, make sure your living will has the proper language in the event you need an emergency life-saving procedure.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: