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What Can an Estate Planning Attorney Do?

Estate Planning attorneys, or a “Wills and Trusts Attorney” are attorneys that are here to help you and your family protect the wealth and property acquired during that person’s life, to get passed from one generation to the next. When a person passes away, either with a “will” or without, that person’s estate will need to pass through a legal process known as “probate”. “Probate” is a procedure where the court appoints someone to oversee the distribution of that person’s assets to the appropriate beneficiaries to close out the estate. Estate Planning attorneys are here to make this process, during some of the most difficult times in a person’s life, as simple and easy as possible for you and your family.

How can an Estate Planning Attorney make the “Probate” Process simple for you and your family?

One way in which Estate Planning Attorney’s can make the process as easy as possible, is by setting up a way for your family to avoid the Probate Court altogether. The best way to avoid probate court by setting up a Revocable Living Trust or otherwise known as a “Living Trust” or “Grantor’s Trust”. A Revocable Living Trust is a legal mechanism similar to a Will, which appoints a Trustee to manage your assets and follow through on the administration of your assets according to you and your families’ personal wishes. Unlike a Will, a properly prepared and funded “Revocable Living Trust” allow individuals to avoid probate court.  

Unfortunately, a Will is a way to distribute your assets upon your death, but your loved ones still must undergo the probate process. In contrasts to a Will, a Revocable Living Trust is designed to plan against incapacity where a successor Trustee is appointed to manage your financial affairs. Often times, people fail to set up a Power of Attorney for Property and/or Power of Attorney for Healthcare. A qualified estate planning lawyer can explain to you and your loved ones how a Power of Attorney, Will, and Revocable Living Trust work together to provide an effective estate plan.

How can an Estate Planning Attorney help with the transfer real estate upon the death of a loved one?

One of the biggest reasons for probate proceedings is due to ownership of real estate and title problems associated with real estate.  Generally, a husband and wife set up their home as Joint Tenants with Rights of Survivorship.  Simply put, this means that upon the death of a husband or wife, the property automatically transfers to the surviving spouse.  However, after the death of the surviving spouse, that person’s family has to deal with the problems with probate court.  For example, John and Sue own a house in Naperville, Illinois, which is located in Will County. John died in 1986, leaving Sue as the owner with a small mortgage.  Sue died in 2016 and the property was in Sue’s name.  Sue has two (2) children, Amy and John.  Now, Amy and John must open up a probate estate after the death of their mother because their mother did not set up the real estate to transfer to Amy and John outside of probate court.  Here, we can assume that Sue either had or did not have a Will.  Even if Sue had a Will, Amy and John still must undergo the Probate Process.  However, if Sue had prepared a Revocable Living Trust where the real estate title was to transfer to the Trustee of Sue’s Revocable Living Trust, Amy and John could have avoided the probate process and all the headaches involved in simply changing over the title to their names. An Estate Planning Attorney can take care of all of these headaches that family members have to deal with during this very stressful time before they even occur.

How can an Estate Planning Attorney help with creditor claims and divorce proceedings?

A Revocable Living Trust has a unique legal provision called a “Spendthrift Provision”.  This Spendthrift Provision protects a beneficiary or beneficiaries from creditors. This keeps creditors from attaching assets received by the beneficiaries from their deceased relative or loved ones.  For example, in the above example, Sue deceased and had a Revocable Living Trust. If Amy and John received an inheritance from Sue’s Revocable Living Trust, the Spendthrift Provision would protect Amy and John’s inheritance from creditors trying to seize those assets after the death of a family member. This includes protecting assets from divorcing spouses. 

Unlike a Will, a Will does not have any protection to allow Amy and John to protect their inheritance from any creditor’s claims.Gateville Law Firm concentrates in real estate and estate planning law. We solve real estate and estate planning issues for people in the suburbs of Chicago such as Will County, Kendall County, Kane County, and DuPage County. We can be reached at 630-780-1034. 

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