Recent Changes to Illinois Estate Planning 2023

Recent Changes to Illinois Estate Planning 2023

This article will discuss Estate Planning in Illinois, and whether there are any recent changes to Estate Planning laws in 2023. Illinois recently changed its law under the Electronic Wills and Remote Witnesses Act, to allow for the testator to execute his or her will remotely using remote witnesses.

What is Estate Planning in Illinois?

Estate planning in Illinois is essentially a preparation plan that sets our what you want to happen in the event that you get sick, become physically or mentally incapable of making decisions for yourself, where you become physically or mentally incapacitated i.e. unconscious or in a coma, where you fall ill with a serious illness and want to make sure that your healthcare wishes and carried out, what happens upon your death, Lastly, what you want in respects to your financial and personal dealings if the aforementioned events occur.

Estate Planning Tools in Illinois

There are many tools in the Illinois Estate Planning toolbox that can help you carry out your wishes upon your death or incapacitation:

1. Living Trusts- In Illinois A trust is a contractual binding agreement between the trust settlor (the person creating the trust) the trustee (the person that manages the trust for the trust settlor) and the trust beneficiaries (people benefiting from the trust). In Illinois there are several types of trusts such as revocable trusts, irrevocable trusts, testamentary trusts, and living trusts. We will only expand on living trusts in this article a living trust in Illinois is a way for you to receive money from the trust during your life and automatically upon your death the trust res will pass to the trust beneficiaries (this will avoid probate but cause tax consequences), or you may have the trust’s trustee manage the trust after your death for the trust beneficiaries who may have special or supplemental needs or where the trust beneficiaries should be given the trust at the trustee’s discretion. Similar to a Power of Attorney listed below, you may have someone manage your healthcare and property in the event that you become mentally or physically incapacitated. A trust does not need to be filed with the Probate Court because it is private, compared to a will which must be filed with the Probate Court.

2. Wills- In Illinois a will is a document that you the testator validly create when there are two competent witnesses who are of the age of majority present, in Illinois the age of majority is age 18, where the witnesses are in your presence, when you execute your will. The witnesses must sign the will along with yourself. A will dictates what will happen upon your death. It is mandatory in Illinois that a will is filed with the Probate Court upon your death.

3. Living Wills- In Illinois living wills are utilized when a person makes their wishes pertaining to medical care and treatment known to their healthcare professionals such as doctors and nursing home staff. A living will discusses your wishes and tells the doctor’s what to do in the event of a person becoming so ill or incapacitated that death is likely to occur. A person through a living will be able to decide whether or not they would like to have life-support, or other preventative life-saving procedures done in order to keep them alive in a situation where they are likely to pass away soon. A living will can be revoked at any time by the person who created it, in order for the revocation of the living will to be valid the person who is revoking the living will needs to inform the doctors and other health care providers notice of the revocation. The revocation will not be valid if the doctors and other health care providers do not receive notice of the revocation of the living will that they were originally informed about.

4. Remote Wills-Illinois recently changed its law under the Electronic Wills and Remote Witnesses Act, to allow for the testator to execute his will remotely using remote witnesses. The witnesses may witness the the will remotely via video conference. The will must state that the place of the execution of the will, is the State of Illinois. The two witnesses age 18 must be competent witnesses, the witnesses must also be present within the United States of America, the video stream must be clear reliable and stable so that the testator and the witnesses can see each other signing the will as it happens. There is also a requirement that the testator must complete a paper copy of the will being signed. There are other important requirements under Illinois law consult one of our highly trained Estate Planning Attorneys at O’Flaherty Law to help guide you through this new law, you can read more about that new law here.

5. Powers of Attorney- In Illinois there exists Property Power of Attorney for Property and Healthcare Power of Attorney.  In the Power of Attorney for Property scenario, a person acts on your behalf and in your best interests to manage your financial affairs. In the Power of Attorney for Healthcare scenario, a person acts in your best interests to your healthcare decisions. If you become ill or incapable of making decisions for yourself or incapacitated, you attorney-in-fact will act in your best interests and will have the authority and duty to act for you with respect to healthcare or financial decisions. Upon your death the Power of Attorney will be terminated.

6. Payable on Death Accounts- Payable on Death Accounts are financial accounts such as checking or savings accounts that pass to the named designated beneficiary or beneficiaries automatically upon your death.  

7. Life Insurance- Life insurance is a policy or contract between you and an Insurance Company, there are many different types of life insurance such as term life insurance which only lasts for a certain period of time, i.e. a set number of years, and whole life insurance which lasts for an entire lifetime. Upon your death the named beneficiaries of your life insurance policy will automatically receive the funds from the life insurance policy contract. It is important to note that life insurance policy proceeds are non-taxable  for income tax purposes, so your beneficiaries will not have to pay taxes on the life insurance proceeds that they receive.

8. Joint Tenancy Titled Property- In Illinois a joint tenancy titled property, two individuals are named on the deed to real property, upon the death of one tenant the Joint Tenancy will pass automatically to the surviving Joint Tenant.  

9. Small Estate Affidavit- A Small Estate Affidavit is used in Illinois when the decedent has less than $100K in cash, personal property, assets, and real property, at the time of his or her death. Probate Court can be avoided in these situations, probate is time consuming expensive and should be avoided when there is not a lot of assets or property within the decedent’s estate at the time of his or her death.  

It is a good idea to sit down and speak with an experienced attorney that will help guide you through the estate planning process. It is imperative that you plan for your future, many times we see clients die “intestate” which means without a will and that complicates things for your potential surviving spouse and heirs. Our experienced Attorneys at O’Flaherty Law are highly skilled and have many years of experience to help you navigate your way through the confusing process of estate Planning.  

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