Estate planning is about more than just what happens to your property when you die. Common estate planning documents let you appoint people to handle your affairs if you become disabled, communicate your wishes regarding medical treatment, and nominate guardians for minor children.

A comprehensive estate plan protects your family now and into the future. Estate plans in Illinois typically include at least the documents discussed below, though individual circumstances may necessitate more advanced planning. 

Consult a Chicago estate planning attorney to learn which estate planning documents will best meet your family’s needs.  

Last Will and Testament

The primary purpose of a will is to direct where a person’s property will go when they die. A person (testator) must be at least 18 years old and of sound mind to execute a will. A will must be signed in the presence of two disinterested witnesses. 

The will appoints an executor who is responsible for inventorying the testator’s property, paying creditors, and distributing the remainder to the heirs after the testator’s death. Guardians for minor children may also be appointed in a will.

Wills have no legal effect until they are probated. Probate is the court-supervised process that validates a will and settles the financial affairs of a decedent. Probate estates valued at $150,000 or less with no real estate can skip the formal probate process and use a small estate affidavit to transfer property. 

Revocable Living Trust

A revocable living trust is a legal alternative to a will for distributing property at death. Unlike a will, a trust becomes effective during the lifetime of the trust creator (grantor). Property owned by the grantor is transferred to the trust, which becomes the property’s legal owner. 

The grantor serves as the trustee (manager) during life and retains unrestricted control over the trust property. When the grantor dies, a successor trustee assumes control of the trust assets and distributes them in accordance with the trust’s terms. No formal legal process is required. 

However, a living trust is not the appropriate estate-planning tool for naming guardians for minor children.

Durable Powers of Attorney (POA)

Everyone should have active powers of attorney. Illinois law recognizes the right of each individual (principal) to appoint an agent to make property, financial, personal, and health care decisions on their behalf.   

These powers are granted during the principal’s lifetime and continue during any period in which the principal becomes disabled or incapacitated. There are two power of attorney documents commonly included in an estate plan.

Power of Attorney for Property

With this document, you appoint someone to manage your financial and legal affairs. The scope of authority given to your agent is usually broad because you want your agent to be able to do anything that you might need to do for yourself. That said, the scope of an agent’s authority can be as broad or as narrow as the document specifies. 

Power of Attorney for Healthcare

This document authorizes your agent to make healthcare-related decisions when you are not able to make them for yourself. A healthcare POA primarily addresses healthcare decisions other than receiving life-sustaining treatment at the end of life. 

To ensure your appointed agent (and any other persons you want to have access) can quickly and easily gain access to your medical information, you should execute an Authorization to Disclose/Obtain Information form. Also known as a HIPAA release form, the authorization is universally recognized by healthcare providers as a green light for releasing your medical information to specified parties. 

Living Will

A living will is a type of advance directive. In it, you can let any treating healthcare provider know what you want done or not done regarding procedures to delay your death if you have a terminal condition. 

Other Advance Directives Recognized in Illinois

Illinois recognizes two specific types of advance directives for preferred medical treatment. These situations can and should be addressed in a healthcare power of attorney, and may also be executed as stand-alone legal documents. 

• Declaration for Mental Health Treatment – lets you make specific decisions regarding mental health treatment  
• Do-Not-Resuscitate Order (DNR) – tells doctors not to attempt CPR if your heart stops

Executing advance directives lets you narrow the scope of treatment you will receive in specific situations and guides the decision-making of healthcare providers and the agent appointed in your healthcare POA. 

Pay or Transfer on Death Beneficiary Designations

Certain types of accounts, such as bank, investment, and retirement accounts, allow owners to designate beneficiaries to receive the account balance upon the owner’s death. The designated beneficiary receives the property immediately without having to deal with any legal proceedings. 

Real property in Illinois can be transferred at death using a Transfer on Death Instrument (TODI). A TODI must be witnessed, notarized, and filed in the county where the property is located BEFORE the owner dies. 

Property Ownership with Survivorship Rights

Joint tenancy is a type of property ownership where two or more people own property in such a way that when one joint tenant dies, the survivors immediately own the decedent’s share. To create a valid joint tenancy, the ownership document must state that the property is owned as joint tenants with right of survivorship.

Married couples or partners in a civil union can use a special form of joint tenancy called tenancy by the entirety to own their primary residence. Tenancy by the entirety allows the residence to pass to the survivor and protects it from the claims of the decedent’s creditors. 

Estate Planning is Life Planning, Don’t Put it Off

Thoughtful estate planning makes it easier for families to handle critical legal matters during life and after death with minimal hassle, delay, and cost. Because life is uncertain, we can never know when we will be grateful we took the necessary steps to prepare for unexpected challenges. 

Plan Forward Legal offers comprehensive estate planning services in the Chicago area. Peace of mind is only a phone call away.