ESTATE PLANNING TIPS ALL PARENTS SHOULD KNOW

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

Throughout my career practicing law, I've noticed clients' preparation in planning a family.  You learn you are going to have a child and you are overcome by emotion.  The planning starts and you try to think of everything to ensure the protection of the new life you are bringing into the world.  You buy a crib, baby clothes, pampers, and anything you can think of that your baby will need.  However, one important oversight is the preparation to protect your child if you die or become incapacitated.  This article should serve as a brief introduction to some easy steps you can take to prevent a legal catastrophe from occurring should something tragic occur to one or both parents.  

We’ve all heard the expression that “you can’t take it with you when you die”; but at least the Illinois Probate Act sets out a “default” guideline as to who inherits your personal property from your estate if you die without a will. Unfortunately no such rule exists governing your most prized possessions – guardianship of your children.

Guardianship estate planning is critical for any parents, regardless of your personal worth. The guardian is the person appointed to care for the well-being of your children, essentially stepping into the roles of Mom and Dad. There are two types of guardianships – guardianship of the estate and guardianship of the person. The guardian of the estate is the person/entity responsible for your child’s financial affairs and management; the guardian of the person is responsible for the child’s care and well being. You can elect to have the same person act as both the guardian of the estate and person; or can choose different guardians for each role. Perhaps you want your brother appointed guardian of the estate, while your sister acts as guardian of the person. Another option is allowing two people to act as joint guardians if the situation is warranted – meaning each will have equal say in the up-bringing of your kids. The various possibilities and reasons are too vast to cover in this article.

Although Courts give considerable deference to who you nominate as guardian(s) of your children in your estate planning documents, a petition and court order is still required to deem them a legal, permanent guardian. Safeguards are in place to ensure that your children have a guardian while the court proceedings are pending. There are essentially four forms of guardianship that you should be aware of:

Short Term Guardian - A short term guardianship is effective upon the date stated in the written document but is only effective, at most, for 60 days. For example, “I appoint John Smith as guardian upon my death…” John Smith could then use this document as legal proof of guardianship of the child(ren) for up to 60 days.

Standby Guardian – The standby guardianship is nominated in the estate documents but unlike the short term guardian, he/she must first be appointed by the court for a temporary period until the permanent guardianship is determined. A standby guardian is not limited to 60 days.

Temporary Guardian – is the temporary guardian of the children. The difference between the temporary and standby guardianship is the fact that the standby was previously nominated by the parents during the estate planning process during their lifetime. That person is merely “standing by” to be either the Temporary and/or Permanent Guardian.

Permanent “Plenary” Guardian – this is the person or persons who will have guardianship over the children until such time that the children turn 18.

As a parent of two young children, I know first-hand the concerns and fears parents have about leaving your children behind. Guardianship provisions in your estate planning documents can help alleviate these concerns by giving you a voice in choosing who will care for your children in the event of your untimely passing.

If you do not have these safeguards already drafted and executed, it could lead to many subsequent problems, such as infighting amongst family members or going so far as the court deciding guardianship, an uncertain outcome.  If you are going to drive a car, you will need to have car insurance.  The same can be said if you are going to have children, you should have a plan in place to ensure their protection if some tragedy occurs.

Call you attorney to inquire as to the process for adding these clauses to your estate plan.  At Hall & Rustom, LLC, our rates are reasonable and the cost of the legal work pales in comparison to the problems that could arise if no plan is in place for your children.

To schedule a consultation regarding your case please call the attorneys at Hall & Rustom LLC (309) 699-4691, our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

The Uncontested Divorce: Do I still need a lawyer?

By Attorney Michael S. Fritz, Partner at Hall & Rustom, LLC

Believe it or not, not every couple seeking to sever the bonds of their marriage also seek to sever the head from their spouse’s neck.  Often times divorcing parties participate in what is called an “uncontested divorce” or agreed divorce.  These types of proceedings are the most cost effective and efficient ways for couples to obtain a divorce. 

An uncontested (or “agreed”) divorce is when parties amicably agree to the terms of their divorce but simply need the expertise of an attorney to navigate through the legal system and to file the proper documentation to ensure that the terms of their agreement(s) are be legally binding. 

A case involving child custody requires a document called a “Parenting Agreement”.  This document  governs the terms and conditions of subjects such as parenting time, holiday visitation schedule, child support, health care, schooling, religious up-bringing and other issues related to the children.  The document that governs the division of marital property is called a “Marital Settlement Agreement”.  The Marital Settlement Agreement divides the parties’ marital assets and debts and further addresses such issues as maintenance (alimony) and retirement accounts.  Finally, the Judgment for Dissolution, is the court order executed by the judge, which finalizes the divorce and incorporates the terms of the agreements between the parties and makes them legally enforceable court documents. 

The attorneys at Hall & Rustom, LLC can ensure that all of the above documents include the proper terms to completely memorialize the terms of the parties’ agreement and finalize the divorce.  To send a message to our attorney concentrating in divorce, please visit www.centralillinoislawyers.com or contact Michael Fritz via email with your question.

Despite the seemingly simplistic nature of an uncontested divorce, complications can arise if done incorrectly.  Below are just some of the issues that our firm has faced concerning uncontested divorces with clients who did not have an attorney to assist in the proceedings:
 
a) He/she told me I could have the “car/savings/tv/etc.,” but it’s not in the court agreement.  Can I make them give me what they promised?

I am often surprised by the number of people who come to me after the divorce papers have been executed in an attempt to enforce a promise or agreement they had with their former spouse which was not memorialized in the written Marital Settlement Agreement.  Property may be left out of the documents if the parties feel as though the property, whether it be antique furniture or television set, is miniscule to include in the written divorce paperwork.  In other instances an issue may arise between the parties during the physical division of the marital property but after the judge has signed off on the court order.  In most cases, if the stipulation is not included in the written divorce documentation then “it didn’t happen.”  The reason the attorneys and the courts spend time drafting these agreements and fighting over the language included in them is because of the lasting and binding effect they have on the parties.  Courts are often unwilling to determine the understanding of an oral (or parole) agreement beyond the scope of the written documentation.  Although the attorneys at Hall and Rustom have facilitated many uncontested divorces at the requests of our clients, we ensure that the opposing party (spouse) is fully aware that our firm does not represent his/her legal interests in the matter.  

b) We both hired the same attorney to represent us.  Should I just share the same attorney with him/her?

It is a violation of ethical rules for an attorney in Illinois to represent two parties who have direct, competing legal interests - also known as a conflict of interest.  Many clients mistakenly believe that the attorney hired by their soon-to-be ex-spouse to draft the marital dissolution documents is also “their attorney”.  Although this attorney may have been retained by your spouse to draft documents that you and your spouse have purportedly come up with together, this attorney is still obligated to look after his/her client’s best interest; therefore, the attorney is obligated to make sure that the client who hired him/her (your soon to be ex-spouse) is the party who is fully informed and protected.  They are also legally obligated NOT to give the opposing party (the other spouse) legal advice regarding the divorce.  This is why it is highly advisable to hire your own attorney to protect your interests in even an uncontested divorce.  At the very least, the attorney can review and advise you of the legal documentation already drafted in your divorce.  The cost effectiveness and efficiency of the uncontested divorce are still maintained, but you walk away with the assurance that your legal interests are protected. 

c) We just agreed that he/she won’t have to pay child support.  If I want child support later, I can always get them to pay later, right?

Illinois law provides that child support is a vested right of your children, not the parents.  Therefore, despite what the parents may believe, they cannot use child support as a bargaining chip to negotiate the terms of their divorce.  Illinois mandates certain amounts of child support percentages depending upon how many children are born to the marriage.  This amount may be altered if the JUDGE, not the parents, find a justifiable reason to DEVIATE from the standard guidelines.  If the parties choose to ignore this fact, and further choose to unjustifiably lessen a child support obligation of a given parent, the court may void the enforceability of the divorce documentation.  Further, there are time restraints as to how long a party to a child support battle will have to wait to modify a final judgment/agreement by the court.  In most jurisdictions, if you want to change a final order by a judge in Illinois, the parties must wait two (2) years before filing the petition to modify support/custody/etc. unless compelling evidence is present to convince a judge. The attorneys at Hall & Rustom work with our clients to ensure that any deviation decided upon by the parties will likely meet the scrutiny of the court prior to the execution of the divorce papers.

It commonly is assumed to simply "go it alone" on, what appears to be, simple family matters.  You should always consult an attorney to determine what appropriate measures can be taken to protect your best interests.  At Hall & Rustom, LLC, we strive to think five moves ahead to protect not only your present interests, but your future interests.  To schedule a free consultation, email attorney Michael Fritz or call (309) 699-4691 to set an appointment. 
 
If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.



  


LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Family Law Issue: What should I do about paying college expenses for my children when my spouse and I are wanting to divorce?

By Michael S. Fritz, partner at Hall & Rustom, LLC

Many people are aware that a person’s child support obligation terminates when either the child turns 18 years-old or graduates from high school, whichever is later; however, Section 513 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) also allows for the payment/contribution for expenses related to a child’s college or higher education.  §513 considers a wide array of factors and circumstances in determining if, and what amount, a person must contribute to their child’s college or higher education expenses.  Below are some questions I regularly receive from clients regarding to college expenses:

a) Must my ex-spouse pay for my child’s educational expenses?

No. Although this is not the common result, a court is not obligated under §513 to order a parent to contribute to the college/educational expenses of the child.  The court considers many factors pursuant to §513 in making its determination as to who should pay and what amount.  If, after analyzing the relevant facts , the court finds that one parent is unable to contribute towards these expenses, the judge may find that the he/she does not need to contribute.  Each case is different, and although there is no “cookie cutter” answer as to who pays for what, a courts commonly will require all parties: mom, dad and the child to contribute at least something towards that child’s higher education.

b) Can the judger order contribution to my child’s trade school?

Yes.  §513 educational expenses extend to both college/university expenses, as well as professional training, (and in some cases high school G.E.D.).   The theory behind payment towards §513 educational expenses is that many parents have the ability to contribute to the success of their children’s future by contributing to their child’s education and training, regardless of what that profession may be.  Illinois law recognizes that not all children will attend the traditional college or university, therefore §513 allows for the payment of professional, vocational and even G.E.D. training/schooling.

c) Is the income of my ex-husband’s/ex-wife’s spouse considered in determining contribution to the payment of college/educational expenses?

Yes. Unlike the determination of child support, a spouse’s income can, and will be, considered by the court in determining one’s ability to contribute to the payment of educational expenses.  There are many factors the court considers in determining whether to award any money toward the payment of child’s college/educational expenses, one of the most significant factors the court may consider is “the financial resources of both parents”.  For that reason, a spouse’s income will directly impact the court’s determination as it directly affects the financial resources of a particular parent.  This factor is worded to accommodate those who have remarried and in the processes substantially increased his/her financial stability.

d) How will my child’s choice in college affect what I am ordered to pay? (i.e. -public university, private university, and community college tuition rates and costs)

This is one of the most commonly asked questions I receive from clients. The answer I tell them is always the same, “It depends.”

The unique thing about §513 education expense cases is that no case is ever the same, and the outcomes vary on the individual case facts.  As previously discussed, the courts have a wide discretion in awarding these educational expenses and will look at a wide array of factors in reaching its decision.  Perhaps the child is extremely gifted and is eligible for scholarships such that his/her tuition to Harvard is no more than in-state tuition.  Or perhaps the child is concentrating in a particular field such as religious studies and must attend a specific educational facility to accommodate his/her area of study.  These are but some of the various factors that will govern a court’s decision in awarding educational expenses.

Another factor in the award of college expenses also depends on the presiding judge.   Some judges may order that a certain percentage of the educational expenses are split between the child and the parents in accordance with that particular institution’s tuition rates.  Others may simply order the contributing parent to pay a set dollar amount toward the child’s education regardless of the learning institution the child selects and it’s respective costs.

e) Can a court order payment toward post-graduate schooling such as medical or law school?

Yes, although the court is ultimately given the discretion to decide what amount, if any, the parents or parent should pay toward the post-secondary education of the child.  §513 expenses are determined on a case-by-case basis; meaning there is no black and white rule the judge must follow in awarding these costs.  The Judge is given a wide range of discretion to determine what amount, if any at all, the court should award toward the payment of post-secondary educational expenses.  The court will look at variety of factors in reaching its determination, and depending on the circumstances, find that the child is responsible for all, some or no expenses for post graduate education– each case is unique to the set of facts.

Article Author: Michael Fritz 

Michael Fritz is a partner at Hall & Rustom, LLC and concentrates his law practice in Family law with great emphasis on Divorce, Child Custody, Child Support, and College Expenses.  He also concentrates in Estate Planning & Administration, and School Law.

If you have a legal question, email Michael Fritz.






  

LEGAL DISCLAIMER

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall & Rustom LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.