In this post, we discuss five steps that same-sex couples should take to make sure they have the proper estate plan in place to avoid legal issues.

Estate planning is important for all adults, whether single or married. If something should happen to you without an estate plan in place, the courts and the state will decide what happens to all of your assets.

If you are a part of a same-sex couple, then you are likely to face special situations that require extra planning.

This is especially true for unmarried couples because they are at risk for leaving the couple’s surviving member without any assets.

Below are five steps that same-sex couples should take to make sure they have the proper estate plan in place.

Confirm your marital status

Same-sex marriage was legalized nationwide in 2015 by the U.S. Supreme Court. Because of the pre-existing patchwork of state laws that were in place before that time, some issues regarding the marital status of couples that were married before 2015 could exist.

A common issue is with same-sex couples who married in states that recognized same-sex marriages but then moved to states that didn’t recognize those marriages.

In some cases, those couples later broke up while living in states that didn’t recognize their marriages. Because of this, some former couples have mistakenly believed that they did not need to legally dissolve their marriages. In other states, there were couples who had their registered domestic partnerships or civil unions automatically converted into legal marriages.

These two factors have resulted in several instances nationwide of couples who have found out they are married and didn’t know it.

Same-sex couples may need more than a will

You are probably aware that you should have a will in order to make it clear where assets should go when one member of the couple dies. This is especially important if there has been a previous marriage or children involved.

Besides having a will, a Power of Attorney is also a good item to take care of ahead of time. A power of attorney gives a spouse the power to act on your behalf in when you are unable to give consent to certain medical of financial decisions.

Setting up a trust might also be right for some couples who have concerns about legal battles over your assets when you die. It is not uncommon for same-sex couples to be estranged from their families, which can lead to their estates being contested in court if the correct steps have not been taken. Because trusts do not go through probate, they are less likely to be contested.

Related: Can I Keep My Heirs from Having to Go Through Probate?

Plan for your medical needs

Same-sex spouses are more likely to be challenged when they make medical decisions for partners who are incapacitated. Because of this, they should make sure to document their medical wishes ahead of time.

Your options include designating a health care surrogate, which is essentially a power of attorney to make medical or spiritual decisions for you if you are incapacitated. They can also authorize who your medical information can be shared with.

Another option is a living will, which gives instructions on issues such as life support and medical treatment.

Plan for your children

In Illinois when a parents die, their assets pass to their children if there is no will in place. With same-sex couples, it is more common for only one parent to be biologically related to the children. You may need to make adoption part of your estate planning if you haven’t already.

Don’t count on DIY estate planning

There is do-it-yourself estate planning documents and services online, but they typically don’t account for the needs of same-sex couples. Because same-sex couples estates are more likely to be contested in court, you may not want to count on these services.

Talking with an estate planning attorney who understands the unique needs of LGBTQ couples can save your spouse from difficult legal, financial and emotional difficulties

The Law Offices of Lora Fausett P.C. provides estate planning services including power of attorney, probate law, wills, trust administration, and more.

Located in Glen Ellyn, Illinois and serving clients in DuPage, Cook, Kane, Will, and Kendall Counties.

For Information Call 630-858-0090

* Advertising Material: To the extent that the information in this post is interpreted as attorney advertising in accordance with the Illinois Rules of Professional Conduct or within the meaning of state bar rules from all other localities, this statement is made pursuant to those rules.

Specialties: Specialization claims are prohibited by Illinois Supreme Court Rules and we do not claim to be specialists. The content of this e-mail is organized and presented for the sole purpose of general information. None of the included content should be construed as legal advice. Viewing this e-mail or e-mailing the account holder does not create an attorney-client relationship. NOTICE: This page may be considered advertising material.

In this post, we discuss the hows and whys of the most critical items Millennials should consider in regards to your estate planning.

Estate planning is important for everyone. Though some may think that an estate is something that only older or wealthy people have, the fact is, everything that you own is part of your estate.

If you don’t have a will and plan what happens to your estate if something should happen to you, the government and the court system will make those decisions.

Establishing an estate plan allows you to decide what happens to all of your assets and possessions, even your pets.

For obvious reasons most people, millennials or otherwise, would rather make these decisions themselves.

Millenials should plan for unexpected

As a young adult, it’s easy to think that you still have decades of time ahead of you for estate planning.

The thing about the unexpected is that it only happens when it is unexpected. Unfortunately, even young people can be involved in accidents or become incapacitated. We probably all know someone who has passed away at a young age.

Incapacitation

No one expects to be incapacitated, but unfortunately, it does happen. If it does, there are several documents you will need.

The first is a durable power of attorney (POA) that identifies who will make financial decisions on your behalf if you are unable to do so.

The second is a health care advance directive (including a living will) that will outline your instructions for medical care if you become unable to communicate or manage these yourself.

Death documents

These documents will include a last will and testament and the establishment of a trust (either revocable or testamentary).

Beneficiary designations

For younger people, your life insurance policy and 401k programs may account for the bulk of your assets, so it is important to keep your beneficiary designations up to date.

We advise parents of children to have a durable power of attorney and health care advance directive for all their children once they reach the age of 18. Generally, the parents will be designated initially, but you have the right to designate whomever you wish.

Default estate laws in Illinois

All states have default laws specifying where assets will go by default when there is now will or estate plan.

If you are married, your estate will go to your spouse. In Illinois, if unmarried Millenials die without a will and have no children, the property ascends the family tree to their surviving parents and siblings. If you have two brothers and two sisters, they would each receive 1/6 of your estate and each parent would receive 1/6 of the estate.

If you are an unmarried Millennial without a spouse or children and want to select which of your siblings receive your estate or designate a significant other as a beneficiary instead of your parents, you must specify that choice in the appropriate legal documents.

The selection of an executor of your will or a personal representative is a decision you should make when your will is drafted. Most people would prefer to make these decisions themselves rather than the default laws of the state making the decisions for them.

Millennial Assets

Oftentimes, younger millennial individuals are surprised about the number of assets they actually have. It’s very common to be focused on things such as student loan debt and income rather than the asset side of your balance sheet.

Your assets may include:

• 401K and retirement accounts
• Life insurance policy
• Family and collector memorabilia
• Real estate and property
• Vehicles, boats, jewelry, electronics, home furnishings
• Digital assets, social media accounts, websites, photos
• Pets

Millennials may be the first generation who all have to deal with the issue of what happens to their social media accounts when they pass away. Should they be maintained? Should they go offline? That decision should be up to you, but since this is still a relatively new area, there may be default rules you are not aware of.

How Millennials should plan their estate

Estate planning doesn’t have to be a painful process. The important thing is to begin working on a plan. Millennials, like all adults creating an estate plan, can view it as a series of multiyear plans. Every few years or after major life changes, it can be reevaluated and updated.

We hope it’s something you will put some consideration into.

* Advertising Material: To the extent that the information in this post is interpreted as attorney advertising in accordance with the Illinois Rules of Professional Conduct or within the meaning of state bar rules from all other localities, this statement is made pursuant to those rules.

Specialties: Specialization claims are prohibited by Illinois Supreme Court Rules and we do not claim to be specialists. The content of this e-mail is organized and presented for the sole purpose of general information. None of the included content should be construed as legal advice. Viewing this e-mail or e-mailing the account holder does not create an attorney-client relationship. NOTICE: This page may be considered advertising material.

The Law Offices of Lora Fausett P.C. provides estate planning services including power of attorney, probate law, wills, trust administration, and more.

Located in Glen Ellyn, Illinois and serving clients in DuPage, Cook, Kane, Will, and Kendall Counties.

For Information Call 630-858-0090

Probate Law

In this post, we’ll discuss the probate system and the situations in which it can be avoided.

When a loved one passes away, you want to make sure their wishes are respected and that the intentions of their estate are carried out. Often though, these desires are difficult to deal with as you navigate through the court system.

What is probate?

Probate is the legal process where the estate of a decedent is transferred to heirs through a probate court.

If the deceased has a will, the probate process begins when the executor nominated by the decedent in the will, presents the will for probate in a courthouse in the county where the decedent lived or owned property.

If there is no will, someone must ask the court to appoint an administrator of the estate, usually the spouse or an adult child of the decedent.

The purpose of probate is to prevent fraud after someone’s death.

Probate is also a public notice of death and lets creditors file claims against an estate. After any creditors are paid, the remainder of the estate goes to the beneficiaries.

If there is not a will, the court will decide how to distribute the property. This is why it is so important to have a will.

Probate laws will vary by state and not all assets or estates need to go through probate. Some assets can transfer automatically at the death of an owner with no probate required.

Why avoid probate?

If the purpose of probate is to avoid fraud, then why would you avoid probate?

One reason to avoid probate is because it is a long process that can take six months to a year or more to settle with the state.

Another common reason is that people wish to avoid legal fees, which can cost thousands of dollars or to avoid public scrutiny because probate proceedings are open to the public.

How to avoid probate

Some assets can automatically escape probate and be paid directly to the beneficiary you have named. These include insurance policies, IRAs, retirement plans and some bank accounts.

Another way to avoid probate is if a couple has jointly owned property with “rights of survivorship”. Jointly owned assets will transfer to the surviving owner.

You can also avoid probate by having assets passed directly to your heirs by putting them in a revocable living trust.

The best solution is to speak with a trusted attorney who can help you craft a solution for your personal situation.

* Advertising Material: To the extent that the information in this post is interpreted as attorney advertising in accordance with the Illinois Rules of Professional Conduct or within the meaning of state bar rules from all other localities, this statement is made pursuant to those rules.

Specialties: Specialization claims are prohibited by Illinois Supreme Court Rules and we do not claim to be specialists. The content of this e-mail is organized and presented for the sole purpose of general information. None of the included content should be construed as legal advice. Viewing this e-mail or e-mailing the account holder does not create an attorney-client relationship. NOTICE: This page may be considered advertising material.

The Law Offices of Lora Fausett P.C. provides estate law attorney services including estate planning, probate, living will and living trust services.

For Information Call 630-858-0090

Image sources: Probate letters – Gavel