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Estate Planning and Guardianship Considerations
One of the most important purposes of estate planning is safeguarding the best interests of minor children. If you are a parent with a child under the age of 18, you should be aware of your options regarding guardianship. Although it can be incredibly difficult to think about, all parents should consider who they would want raising their child or children should something happen to them and/or the other parent. In the tragic case that parents pass away before their minor children, an estate plan will dictate who will have legal guardianship of them as well as address inheritance benefits. While it can be an emotional process, creating an estate plan gives parents peace of mind knowing their minor children will be cared for should the worst happen.
When Parents Pass Away Without an Estate Plan
When someone dies without a will, his or her property is divided according to Illinois law during probate court. Minor children can inherit property or wealth but are legally unable to receive the property or manage it before they are a legal adult. The inherited property is instead be managed by a legally-appointed guardian. If no estate planning documents addressing guardianship have been created, this guardian will be appointed by the court. Without an estate plan, it is possible that children’s inheritance and guardianship decisions will be in hands of strangers.
Second Parent Adoption: A Common Option for Same-Sex Couples
Historically, adoptions for same-sex couples have included their share of difficulties. Many people still believe children need a mother and father figure in their lives rather than two “similar figures.” This type of thinking has slowly phased out over the past 20 years, especially with the legalization of gay marriage.
Same-sex couple adoptions made progress in 2016, just months after that legalization became official. A lesbian mother finally won legal custody of her children in a case that went all the way to the Supreme Court. The woman had cared for the children most of their lives and wanted legal documentation to recognize her as their mother. After deliberation, the Court overturned an Alabama Supreme Court ruling that said the court should not recognize the woman as the children’s mother. This court case opened doors for gay couples across the nation, allowing for non-nuclear families to exist.
Second Parent Adoption in Illinois
Common Reasons People Procrastinate About Estate Planning
When you stop and think about it, you probably realize that it would be a good idea to have an estate plan—or at least a will—in place. We all understand, at least at a basic level, that it is better for us to decide what will happen to our assets after our death than to let the state decide for us. Put simply, we know that we cannot take our assets with us when we die, so there should be a plan for how they will be handled.
Despite knowing all of this, more than half of American adults still do not have created even a will, let alone other estate planning instruments. Experts have conducted surveys and studies to determine why this is the case, as people may put off estate planning for a wide variety of reasons. Let’s take a look at some of the common ones:
Facing the Reality of Death
Advances in Western medicine and knowledge about nutrition and related concerns have pushed the average life expectancy upward in America over the last few decades. (In the interests of accuracy, it bears pointing out that the average life expectancy has dipped slightly in recent years, but we are still living longer than we did a century ago.) The obsession with longevity and quality of life makes many people hesitant to truly accept the reality that everyone will eventually die. The refusal to confront one’s own mortality can result in avoidance of any topics related to death, including estate planning.
Stepparent Rights Before and After a Divorce
Becoming a step-parent can be an overwhelming life change, whether you have biological children of your own or not. Approximately 40 percent of American families are blended families, making stepparenting a common occurrence. It can be a challenge to balance the desire to befriend your spouse’s child and earn their affection with the need to parent them when the time comes. Many stepparents form strong bonds with their stepchildren, and they should be sure to understand their rights and legal obligations both during their marriage and if divorce ever enters the picture.
Throughout the Marriage
- Discipline: Many stepparents leave discipline to their spouse, especially when they first join the family, but as time goes on, more and more responsibility can get placed in their hands. It is important to have a conversation with your spouse about parenting expectations. Though it may not feel like it, you must remember that discipline is intended to benefit the child, and as a parent, the child’s safety should be your first priority.
The Dangers of Dying Without an Estate Plan in Place
According to several recent surveys, about 55 percent of American adults do not have a will. Of those, approximately 60 percent say it is simply because they have not had the chance to create one, but human nature suggests that there may be another motive. Many people are simply unwilling to consider their own mortality and to face the reality of death. Unfortunately, this can lead to serious consequences, even for those who do not have particularly large estates. Unfortunately, dying without a will or other estate planning tools can lead to some unpleasant consequences.
Depreciation of Assets
There are a number of reasons that assets may depreciate after death. It could be due to the red tape and time it takes to go through the Illinois probate system. Alternatively, valuable funds may need to be spent on tracking down family members that you might not have even had planned to inherit (or may very well be deceased). Taxes, which often end up being higher in the absence of a will, can also affect the value of the estate. Regardless of the reason, the absence of a will makes depreciation almost unavoidable.
Pets and Divorce: Including the Puppy in the Prenup
For many people, pets are a part of the family. You get them when they are young and you take care of them as they grow older, much like parents do with their children. Whether the pet is a dog, cat, bird, or reptile, many pet owners view their pets as children as well.
Divorce means the division of assets between two spouses, but also a decision on who gets the pet after the divorce papers are signed. Prenuptial and postnuptial agreements are a way to make these decisions while a couple's relationship is in a good place, instead of during the often contentious divorce process if they reach that unfortunate conclusion. Much of the negative perception regarding these agreements has faded in the public consciousness because couples now see the value of expecting the best but planning for the worst.
Pets in the Eyes of the Court
In most states, pets are solely regarded as property and are treated as such. Illinois is one of the few states that has made progress in the pet department. In 2017, Illinois and Alaska passed bills that allow judges to consider the well-being of an animal when making these decisions, and California recently followed suit. This bill also allows judges to grant joint custody of the pet if they believe it is the best option for the animal. Though many divorce cases do not end up going through full litigation, custody of children and pets often brings emotions to an all-time high.
Estate Planning Is Not Just About Wills
Most people know that estate planning chiefly deals with the distribution of assets and personal wealth after a person passes away. A last will and testament or trust can enable an individual to decide how his or her hard-earned assets are divided among heirs. While having a will is a critical part of making sure your final wishes are fulfilled and your family is provided for, wills do not address what will happen if you become incapacitated due to illness or injury. This “incapacity planning” is often disregarded as unnecessary or too emotionally burdensome to manage, but planning for potential incapacitation is critical to having a comprehensive estate plan.
Do Not Burden Your Family with Making Health Care Decisions on Your Behalf
Have you ever considered what would happen if you became unable to make decisions about medical care or financial affairs because of a serious illness? Often, when people fall ill and are near death, their family members have to make excruciating decisions about death-delaying procedures. Deciding when and if procedures like mechanical ventilation, surgery, cardiopulmonary resuscitation (CPR), dialysis, antibiotics, or transfusions should be used can be a tremendously burdensome task for family members. However, those who have incapacitation plans in place save their family members from being forced to make blind decisions about financial matters and medical procedures.
Blended Families: How to Adjust After Remarrying
The term “blended family” refers to families that come together with a relationship that follows a previous marriage or marriages. This often means connecting children who are unrelated to form a new, larger family. Every situation is unique. Some spouses both have children from their previous relationship while others do not. Both families are accustomed to “how things used to be” and it can be a difficult transition for parents and children alike.
There are many different strategies that can help families come together, even if it does not feel natural at first. Listed below are various ways to strengthen your family as it begins to form:
Set Boundaries
Begin by having a conversation with your new spouse about parental expectations. It is not always best to try and become your stepchildren’s new disciplinarian. By discussing and planning your boundaries and expectations with your spouse, you ensure that you both will hold similar roles for any stepchildren while maintaining respect for their biological parent.
Understanding “Undue Influence” in Estate Planning
Sadly, as long as there are vulnerable people in the world, unscrupulous individuals will attempt to exploit that vulnerability. This is especially a concern for those with elderly or disabled relatives. When someone exerts “undue influence” on an elderly or otherwise incapacitated person, they try to convince that person to make a different decision than he or she planned to make. This often occurs with financial and inheritance concerns. If you believe that your relative was under undue influence when he or she created a will or other estate planning document, you may be able to bring these suspicions to probate court.
Elderly Individuals and Those with Dementia Can Be Taken Advantage Of
Probate is the verification process which every will goes through in order for inheritance directions to be carried out after an individual dies. If you have recently lost a loved one and you suspect that his or her will does not actually reflect his or her final wishes, you may petition the court to have the will invalidated. This is called contesting the will. In order to prove your relative was under undue influence, you will need to show that:
Is Adultery Illegal, and How Does it Affect Divorce Cases?
Throughout the history of marriage, adultery has been socially frowned upon as a betrayal of trust, and it often leads to divorce. Public opinion and religious beliefs are often believed to be the driving factor behind these negative views, but the laws regarding marriage also play a role. However, many people do not understand how these laws may affect them.
The Legality of Adultery
As is common with most laws, the way adultery is defined and handled varies from state to state. What many fail to realize about adultery is that in Illinois, it is considered against the law and can result in legal repercussions. Illinois is one of 18 states that have made adultery a crime. Illinois law defines the act of adultery as voluntary sexual intercourse between a married person and a person who is not their spouse, if:
- The person is married and knows the other person involved in such intercourse is not his spouse; or
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