Estate Probate Lawyers +1 (617) 610-2156 Argentina

Estate Probate Lawyers +1 (617) 610-2156 Argentina

We represent both individual and corporate fiduciaries with respect to estate, trust and guardianship administration, and litigation issues; real estate transactions; and post-mortem planning, including disclaimer planning and tax reporting issues. We also assist clients with the development of an appropriate estate plan based on their specific situation and desires, the preparation of the appropriate estate planning documents setting forth that plan, and the further implementation of the plan.

ESTATE PLANNING

 

Estate planning involves deciding and setting forth how you want your assets distributed after death, how your assets should be managed if you become unable to make your own decisions with regard to financial matters, and how your health care and personal matters should be managed if you become unable to make such decisions. Your estate plan would name one or more individuals (or corporate fiduciaries) that you wish to:

(a) make financial decisions on your behalf in the event of your incapacity,

(b) make health-care related decisions on your behalf in the event of your incapacity;

(c) manage and distribute your assets after death, and

(d) take custody and care of your minor children, if any, after death. Certain estate plans may also be able to avoid the costs and delays of formal probate of your estate, minimize the amount of Federal and provincial estate taxes due after death, and set up trusts for certain beneficiaries (e.g., minor beneficiaries; special needs beneficiaries; or beneficiaries with special issues such as addiction or over-spending) after your death.

Without an appropriate estate plan, it may pass to:

  • unintended beneficiaries pursuant to Illinois’s intestacy statute (e.g., your probate assets may pass one-half to your surviving spouse and one-half to your children rather than 100% to your surviving spouse; your probate assets may pass to certain estranged relatives; your probate assets may pass to certain relatives rather than to your domestic partner);
  • outright to your beneficiaries with unintended consequences (e.g., outright to minor children which would then require formal guardianship court proceedings for that child; outright to a special needs beneficiary which may disqualify that beneficiary from receiving public benefits);
  • an undesired individual (e.g., estranged relative or unqualified individual) handling your financial and health care matters or caring for your minor children.

Also, your estate may incur the significant costs and delays of formal guardianship court proceedings in the event of your incapacity. Or, it may incur the significant costs and delays of formal probate court proceedings (or even multi-state probate proceedings if you own out-of-state real estate) after death.

We can assist in the development of an appropriate estate plan based upon your specific wishes, family situation, and net worth in order to provide for the smoothest, most cost-efficient transition for your family and other beneficiaries in the event of death or disability.

While self-prepared estate plans have become more popular and accessible on the Internet, a self-prepared estate plan can result in many pitfalls, such as a document that is not executed with the property formalities required by State law, ambiguities in the language, and improperly funded living trusts, all of which may result in significant costs and delays to resolve those issues and may even negate the goals of your planning efforts. Consider it an investment to have one of our attorneys assist you with an estate plan. A properly prepared and funded estate plan could save you and your intended beneficiaries thousands of dollars and eliminate many of the headaches and delays of litigation for your beneficiaries.

If you do not have an attorney who can assist you with your estate plan, one of our attorneys would be happy to meet with you for a free initial consultation. If you already have existing estate planning documents, we can also review them for you and recommend any necessary changes, especially given any of one or more of the following changes that may have occurred since you initially created your estate plan:

  • the birth of a potential beneficiary;
  • the death of a named beneficiary or fiduciary;
  • divorce and/or remarry;
  • moving to Illinois from out of state;
  • an inheritance;
  • you now have a beneficiary with special needs who is receiving public benefits;
  • business changes; or
  • tax law changes.

 

 

ESTATE AND TRUST ADMINISTRATION

Our law firm represents individuals and financial institutions in their fiduciary capacity (whether as an administrator, executor, or trustee), assisting them in all aspects of probate estate administration, trust administration, and non-probate estate administration. We also represent beneficiaries throughout the administration process. In addition, the court has appointed our attorneys to act as Administrator of an Estate.

(a) What is Probate Estate Administration?

“Probate” is a legal proceeding in which the Court: (i) appoints a representative (administrator or executor) of your Estate after your death, (ii) oversees the payment of debts, taxes, and expenses, and (iii) determines how your probate assets will be divided and distributed (either in accordance with your Will if you have one or in accordance with Illinois law if do not have a Will). We can assist or advise the estate administrator/executor with respect to all aspects of the probate administration process.

In Illinois, at your death, if the value of your “probate assets” equals or exceeds $100,000 or includes real estate, probate proceedings are required. “Probate assets” are assets held individually which do not pass by beneficiary designation. Only probate assets are required to go through probate administration. “Non-probate assets” include the following and are not required to go through probate administration: (i) property owned jointly with rights of survivorship, (ii) property that passes by beneficiary designation to a beneficiary other than your estate, and (iii) property held in trust.

Probate is usually undesirable because of its associated costs and delays. Probate proceedings involve certain required costs (such as filing fees, newspaper publication fees, and certified copy fees). Even more costly are the attorney’s fees for probate court appearances and document preparation. Further, probate proceedings must be open for at least 6 months in order to allow creditors to make claims against the estate (and allow anyone to contest a Will) prior to making any distributions to the beneficiaries. This can be an inconvenience or even a hardship to certain beneficiaries who may need the inheritance for their support.

(b) What is a Trust Administration?

If you have a living trust and have properly funded it during your lifetime, then guardianship proceedings would not be required in order for the successor trustee to manage your trust assets in the event of your incapacity. Further, probate estate administration would not be required in order to transfer your assets to your beneficiaries at death. Rather, at your death, the successor trustee would be able to take over the management of the trust assets immediately to pay your debts, taxes, and expenses and distribute the trust assets to your beneficiaries according to the trust agreement.

Although formal probate administration may not be required, the successor trustee still has a responsibility and duty to administer the trust according to the terms of the trust agreement and as required by Federal and state law. In addition, the successor trustee will be required to notify your beneficiaries; collect all trust assets; obtain a taxpayer identification number for the trust and update trust accounts with the new number; identify your creditors and either pay or negotiate to lower or write off your bills; keep good financial records; provide an accounting to the beneficiaries; file your final individual income tax returns; your estate tax returns (if required); and the fiduciary income tax returns for the trust; set up any new trusts that are required to be created for the benefit of a minor, disabled or other trust beneficiaries; and distribute trust assets to beneficiaries in a timely fashion. We can assist the successor trustee with any aspect of these administrative duties and can advise trustees before he or she takes any action that could be considered unwise or unduly favor one beneficiary over another.

(c) What is Non-Probate Estate Administration?

Even when formal probate proceedings are not required, we can still assist the representative with the administration of the estate. For example, if the value of your “probate assets” may be less than $100,000 and therefore does not require formal probate proceedings, your representative (whether a relative or nominated executor if you have a Will) may still require the assistance of an attorney to collect such assets and to advise him or her with respect to the distribution of those assets, whether pursuant to Illinois’s intestacy statute or pursuant to Will. Further, the representative of a non-probate estate may need advice with regard to other miscellaneous administrative tasks, such as the payment of debts and the filing of any required income tax returns or estate tax returns.

GUARDIANSHIP ADMINISTRATION FOR DISABLED ADULTS

If an adult (18 years old or over) is unable to handle his or her personal and/or financial affairs because of a mental and/or physical deterioration, illness, incapacity or disability (and if he or she does not have an effective property and/or health care power of attorney in place), the Court may declare him or her to be a “disabled person”. As a “disabled person”, he or she will lose the right to make independent decisions concerning some or all of his or her personal and/or financial affairs (depending on the extent of disability), and the Court may appoint a Guardian of the Person and/or a Guardian of the Estate for him or her.

The “Guardian of the Person” makes decisions concerning the disabled person’s physical and personal care, including living arrangements and healthcare-related matters.

The “Guardian of the Estate” makes decisions concerning the disabled person’s financial affairs and is authorized to handle the disabled person’s money, property, bills, and other financial affairs. Often, the same person is named as both Guardian of the Person and Guardian of the Estate.

If the Court determines that the disabled person is able to handle some aspects of his or her affairs, the authority of the Guardian may be “limited” (partial authority) rather than “plenary” (total authority).

The Guardian must be a U.S. resident; at least 18 years old; not been convicted of a felony involving harm or threat of a minor, elderly or disabled person; and willing and able to act as Guardian. Often a family member or friend will be appointed Guardian. Sometimes, however, if no one is willing to act as Guardian or if family members fight over who will act as Guardian, the Court will appoint a County Public Guardian, the Office of State Guardian, or a financial institution as Guardian.

The proposed Guardian or another interested person will file a Petition for Guardianship with the Court, typically in the County in which the alleged disabled person lives. A physician’s report stating why a guardianship is necessary will be filed simultaneously. The Petitioner will then send notice of the date, time, and place of the hearing to the alleged disabled person and his or her relatives. At the hearing, the Judge will determine whether the alleged disabled person is a “disabled person” and if so, appoint a Guardian of the Person, Guardian of the Estate, or both; and determine whether the guardianship should be limited or plenary. The alleged disabled person will have the right to appear in Court and contest the guardianship (if he or she believes he or she does not need a Guardian or he or she wants someone else to be the Guardian) and is entitled to an attorney and his or her own physician’s report.

The Judge will sometimes appoint a Guardian ad Litem (GAL) to investigate the facts of the case and determine what would be in the (alleged) disabled person’s best interests. The GAL might interview the alleged disabled person, his or her family and friends, his or her physician, and other interested parties, and then will report to the Judge his or her findings and opinions regarding whether a guardianship is needed, who should be appointed Guardian, where the alleged disabled person should reside, and what types of services he or she may require.

Any time the Guardian wants to make a disbursement that is outside of the annual budget set forth for the disabled person’s Estate (e.g., reimbursements for expenses paid on behalf of the disabled person, attorney’s fees, Guardian’s fees), wishes to make a major disposition of Estate assets (e.g., sale of real estate in the Estate), or desires to make major changes affecting the disabled person’s care (e.g., moving him or her from his or her home to an assisted living facility), the Guardian will need to petition the Court for prior approval.

The Guardian of the Estate must file an annual accounting showing the receipts to and disbursements made from the disabled person’s Estate. Further, the Guardian of the Person must file an Annual Report on Ward reporting on the disabled person’s status and well-being.

GUARDIANSHIP ADMINISTRATION FOR DISABLED ADULTS

If an adult (18 years old or over) is unable to handle his or her personal and/or financial affairs because of a mental and/or physical deterioration, illness, incapacity or disability (and if he or she does not have an effective property and/or health care power of attorney in place), the Court may declare him or her to be a “disabled person”. As a “disabled person”, he or she will lose the right to make independent decisions concerning some or all of his or her personal and/or financial affairs (depending on the extent of disability), and the Court may appoint a Guardian of the Person and/or a Guardian of the Estate for him or her.

The “Guardian of the Person” makes decisions concerning the disabled person’s physical and personal care, including living arrangements and healthcare-related matters.

The “Guardian of the Estate” makes decisions concerning the disabled person’s financial affairs and is authorized to handle the disabled person’s money, property, bills, and other financial affairs. Often, the same person is named as both Guardian of the Person and Guardian of the Estate.

If the Court determines that the disabled person is able to handle some aspects of his or her affairs, the authority of the Guardian may be “limited” (partial authority) rather than “plenary” (total authority).

The Guardian must be a U.S. resident; at least 18 years old; not been convicted of a felony involving harm or threat of a minor, elderly or disabled person; and willing and able to act as Guardian. Often a family member or friend will be appointed Guardian. Sometimes, however, if no one is willing to act as Guardian or if family members fight over who will act as Guardian, the Court will appoint a County Public Guardian, the Office of State Guardian, or a financial institution as Guardian.

The proposed Guardian or another interested person will file a Petition for Guardianship with the Court, typically in the County in which the alleged disabled person lives. A physician’s report stating why a guardianship is necessary will be filed simultaneously. The Petitioner will then send notice of the date, time, and place of the hearing to the alleged disabled person and his or her relatives. At the hearing, the Judge will determine whether the alleged disabled person is a “disabled person” and if so, appoint a Guardian of the Person, Guardian of the Estate, or both; and determine whether the guardianship should be limited or plenary. The alleged disabled person will have the right to appear in Court and contest the guardianship (if he or she believes he or she does not need a Guardian or he or she wants someone else to be the Guardian) and is entitled to an attorney and his or her own physician’s report.

The Judge will sometimes appoint a Guardian ad Litem (GAL) to investigate the facts of the case and determine what would be in the (alleged) disabled person’s best interests. The GAL might interview the alleged disabled person, his or her family and friends, his or her physician, and other interested parties, and then will report to the Judge his or her findings and opinions regarding whether a guardianship is needed, who should be appointed Guardian, where the alleged disabled person should reside, and what types of services he or she may require.

Any time the Guardian wants to make a disbursement that is outside of the annual budget set forth for the disabled person’s Estate (e.g., reimbursements for expenses paid on behalf of the disabled person, attorney’s fees, Guardian’s fees), wishes to make a major disposition of Estate assets (e.g., sale of real estate in the Estate), or desires to make major changes affecting the disabled person’s care (e.g., moving him or her from his or her home to an assisted living facility), the Guardian will need to petition the Court for prior approval.

The Guardian of the Estate must file an annual accounting showing the receipts to and disbursements made from the disabled person’s Estate. Further, the Guardian of the Person must file an Annual Report on Ward reporting on the disabled person’s status and well-being.

Our attorneys have represented clients in all the various roles in the Guardianship administration process, on behalf of:

  • the alleged disabled person;
  • the nominated Guardian;
  • a cross-petitioner who desires to be appointed Guardian;
  • the appointed Guardian of the Estate; and
  • the appointed Guardian of the Person.

In addition, the Court has appointed our attorneys to act as Guardian ad Litem (GAL) to investigate and determine what is in the best interests of the disabled person.

 

GUARDIANSHIP ADMINISTRATION FOR MINOR CHILDREN

Under certain circumstances, it may be necessary for the Court to appoint a Guardian of the Person, Guardian of the Estate, or both for a minor child (under age 18). By operation of law, guardianship of a minor terminates when the minor turns 18 years old.

The “Guardian of the Person” of a minor typically has physical custody of the minor, makes decisions concerning the minor’s physical and personal care, including living arrangements and healthcare-related matters. A parent is already a minor child’s legal guardian by operation of law and need not obtain guardianship of his or her own minor child. A minor will need a Guardian of the Person if the minor has no living parents, the parents cannot be found, or when neither parent is able and willing to care for the minor.

The “Guardian of the Estate” of a minor makes decisions concerning the minor’s financial affairs and is authorized to handle the minor’s money, property, bills, and other financial affairs. A minor will need a Guardian of the Estate if the minor is entitled to funds or property with a value of at least $5,000 (e.g., as the beneficiary of the insurance, from an inheritance, or from the settlement of a personal injury case). If the only assets the minor is entitled to are Social Security benefits, then a Guardian of the Estate is not necessary.

The same person can be named as both the Guardian of the Person and the Guardian of the Estate of a Minor.

The Guardian must be a U.S. resident; at least 18 years old; a resident of the United States; of sound mind; not an adjudged disabled person; neither convicted of a felony involving harm or threat of a minor; and willing and able to act as Guardian. Often a family member or friend will be appointed Guardian. However, if the value of the minor’s estate is significant (e.g., such as an inheritance or personal injury settlement), the Court will typically appoint a financial institution as Guardian of the Estate for the minor child.

A non-parent has the standing to file a petition for guardianship of a minor if each parent has:

  • Voluntarily relinquished physical custody of the child;
  • Failed to appear for a hearing after proper notice and is unwilling and unable to make and carry out day to day childcare decisions; or
  • Consented to the guardianship in a written, dated, and notarized document.

After the Petition for Appointment of Guardian of a Minor is filed, the Petitioner will then send notice of the date, time, and place of the hearing to the parents and nearest relatives of the minor (and to any person who already has legal custody or guardianship of the minor). If a parent is deceased, the Petitioner must file the parent’s death certificate with the Petition. But, if it is not possible to locate the parent, the Petitioner will need to show the last known address of the missing parent and send notice to that parent at that address. Upon reaching 14 years of age, a minor should consent in writing to the guardianship or be given written notice of the hearing on the Petition. At the hearing, the Judge will decide whether to appoint a Guardian of the Person, Guardian of the Estate, or both for the minor child.

The Judge will sometimes appoint a Guardian ad Litem (GAL) to investigate the facts of the case and determine what would be in the minor child’s best interests. The GAL might interview the minor, the minor’s family and friends, the minor’s physician, and other interested parties, and then will report to the Judge his or her findings and opinions regarding whether a guardianship is needed, who should be appointed Guardian, where the minor should reside, and what types of services the minor may require.

Any time the Guardian wants to make a disbursement that is outside of the annual budget set forth for the minor’s Estate (e.g., reimbursements for expenses paid on the child’s behalf, attorney’s fees, Guardian’s fees), wishes to make a major disposition of the minor’s Estate assets (e.g., sale or purchase of real estate), or desires to make major changes affecting the minor’s care (e.g., moving the minor to a different school), the Guardian will need to petition the Court for prior approval. Any such disbursement must be for the minor’s comfort, support, and education.

The Guardian of the Estate must file an annual accounting showing the receipts to and disbursements made from the minor’s Estate. Further, the Guardian of the Person must file an Annual Report on Ward reporting on the minor’s status and well-being (i.e., mental, physician, and social condition), current living arrangements, and any medical, educational and other services the minor has received.

Although the guardianship of a minor terminates automatically when the minor turns 18, the Guardian of the Estate must file a final accounting before being discharged by the Court.

Our law firm has represented clients in all the various roles in the Minor’s Guardianship administration process, on behalf of:

  • the nominated Guardian;
  • a cross-petitioner who desires to be appointed Guardian;
  • the appointed Guardian of the Estate; and
  • the appointed Guardian of the Person.

In addition, the Court has appointed our attorneys to act as Guardian ad Litem (GAL) to investigate and determine what is in the best interests of the minor child.

ESTATE, TRUST & GUARDIANSHIP LITIGATION

Our law firm has represented individual and corporate representatives, beneficiaries, and other interested parties in all aspects of estate, trust, and guardianship litigation relating to all sorts of issues, including but not limited to:

  • Will and/or Trust contests based on undue influence, lack of capacity, fraud/forgery, revocation;
  • Contested heirship in a decedent’s estate;
  • Will and/or Trust construction or interpretation issues when there are ambiguous provisions;
  • Admission of a copy of a lost or missing original Will;
  • Citations to recover/discover the estate and trust assets that may have been misappropriated;
  • Alleged disabled person objects to guardianship itself or to the person nominated as Guardian;
  • Multiple parties cross-petition to be appointed Guardian for the disabled person or minor;
  • The disabled person petitions to terminate guardianship;
  • Contested fee petitions for fiduciaries; and
  • Fiduciary liability issues.

ESTATE TAX

The estate tax is a tax on the value of the decedent’s assets as of his or her date of death. For estate tax purposes, the “decedent’s assets” (gross estate) would include interests in real estate, stocks and bonds, bank accounts, annuities, retirement accounts, living trust assets, and some life insurance. If a decedent’s gross estate exceeds the unused portion of his or her federal applicable exclusion amount ($5.49 million for 2017 decedents, 40% maximum rate on assets greater than $5.49 million), a federal estate tax return is required to be filed even if no Federal estate tax may be due (because of certain deductions for debts, expenses, gifts to a surviving spouse, and gifts to charities). If a decedent’s gross estate exceeds the Illinois exemption amount ($4 million for 2017 decedents), an Illinois estate tax return is required to be filed even if a Federal estate tax return may not be required. The estate tax return(s), if required to be filed or if opted to be a file, are due 9 months after the decedent’s date of death.

Under current law, portability of a decedent’s “Deceased Spouse’s Unused Exclusion” (DSUE) allows a surviving spouse to use his or her deceased spouse’s unused applicable exclusion amount, effectively increasing the amount that the surviving spouse can then gift or leave to his or her family at death estate tax-free. A decedent’s DSUE must be claimed using a timely-filed Federal estate tax return followed the first spouse’s death. Therefore, even though a federal estate tax return may not be required because the decedent’s gross estate does not exceed the applicable exclusion amount, it may still be advisable to file a Federal estate tax return electing portability of the deceased spouse’s DSUE.

We can prepare Federal and State estate tax returns. We also advise clients with regard to estate tax reporting issues and requirements.

Gift Tax

The gift tax is a tax on the lifetime transfer of property, either directly or indirectly, by one individual (donor) to another (donee) while receiving nothing or less than adequate consideration in return. The gift tax may apply whether the donor intended the transfer to be a gift or not (e.g., making an interest-free loan). The donor is the party responsible for the payment of any gift tax liability.

Each individual may give up to the applicable exclusion amount (currently $5.49 million) during a lifetime without paying gift tax. In addition to the lifetime exemption, a donor may give up to the annual exclusion amount ($14,000 for 2017, indexed for inflation) to anyone annually without using up any portion of his or her applicable exclusion amount. Also, certain gifts qualifying for the medical or educational gift tax exclusion, certain gifts to spouses, and certain gifts to charities may be exempt from gift tax.

If a donor makes a taxable gift that uses a portion of his or her applicable exclusion amount, he or she will need to file a federal gift tax return to record the use of that portion. The gift tax return and any gift tax liability due would be due on April 15 in the year following the year that the transfer occurred.

Our attorneys can prepare federal gift tax returns to report taxable gifts and advises clients with respect to gift tax reporting issues and requirements.

COMMERCIAL REAL ESTATE TRANSACTIONS / CONSTRUCTION ISSUES

Our law firm has significant experience representing decedent’s estates, trusts, guardianship estates, and individuals in commercial, residential, and construction real estate transactions, including the negotiation, drafting, and review of purchase and sale agreements, commercial leases, and construction and zoning instruments. Our law firm has handled numerous commercial real estate sales and purchases involving apartment complexes, office buildings, retail centers, subdivisions, and professional offices. Providing counsel to our clients from the initial planning stages through closing, our law firm assists during the negotiation, contract, due diligence, and finance stages of real estate transactions.








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