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Do I have to update my living will and power of attorney documents every three years in the State of Illinois?: When I set up my trust I was told I should update the living will and power of attorney documents with new dates every three years. I want to know if I really need to since it almost three years now. Can I just use the same form and have new signatures added and notarized?

Asked almost 3 years ago in Estate Planning

James’s answer: In Illinois, there is no legal requirement that Durable Powers of Attorney be updated. Generally, a Durable Power of Attorney that was created in compliance with the law on the date it was executed, remains valid even if there are subsequent changes to the statutory requirements at some later date. In general, it is a good idea to have all your Estate planning documents reviewed, and updated if appropriate, periodically or upon the happening of a major event in your life or when you change your mind as to the terms or individuals named in the documents. However, there is no legal requirement that you have them reviewed or updated.

On the other hand, there are practical matters which you must consider. While a Durable Power of Attorney might be a valid legal document, that is little consolation should a financial institution refuse to accept or acknowledge the validity of the document. It is not uncommon for financial institutions to refuse to accept a power of attorney stating that it is stale. A growing number of financial institutions are refusing to accept older documents on the theory that with the passage of time comes the likelihood that the person who signed the power of attorney has changed his or her mind. Durable Powers of Attorney are generally revocable and the financial institution often does not see it until years later when the principal becomes incapacitated. If any period of time has lapsed since the execution of the document the financial institution will often be reluctant to accept powers of attorney for fear of being sued if the power of attorney isn't valid or has been revoked. While certain States, such as Illinois, have made specific changes to its Durable Power of Attorney statute in order to address the financial institution’s concerns, since many financial institutions are now regional or national, you may find yourselves in the quagmire of dealing with legal departments in other states who don’t know or want to be bothered with the law in your State.

The best solution for this problem is one which you have already taken. Setting up and funding a revocable trust is the best solution to the problem with financial institutions. Unlike a Durable Power of Attorney, the financial institution is aware of the existence of the Trust from the beginning since to effectuate the Trust your accounts must be retitled in the name of the Trust. The financial institution also knows all the terms of the Trust since they have kept a copy, and so they know who should be the successor and what has to happen for the successor to be put in charge. If in fact the grantor amends or revokes the Trust, the Grantor has an affirmative duty to notify the financial institution, and absent such notification the financial institution has the right to rely upon the document they have in their possession. In that situation, the financial institution has nothing to be concerned about in regard to their liability and therefore the problem that exits with Durable Powers of Attorney do not exist with a properly prepared, executed and funded Trust.

Answered almost 3 years ago.

What all does his Mother inharrit: Me and my husban got a divorced in 1999 do to medical and finace problems but we stayed to gether for almost 20 years.
He passed away this month.

His next of kin is his mother

I have 2 vans that has his name on the title along with my name.
I have 1 van that we were buying from a dealer his name is on the contract as with mine. the dealer said he can not remove his name.
I am buying a house on contract from the owner both my and his name are on the contract to it.

I need to know if his mother inharrets part of the 2 vans and what happens to the other van and the house.

I know everything I bought using my money that was bought after the divorce is my property. But because we both had our names on this items they were gotten after the divorced.

She already demanding I sale everything I own because she just knows he bought it even if he did pay for anything for me it would be a gift would it not.

He bought me gifts all the time many I still have others I do not.

I need to know what all I have to hand over to her and what is legally mine

Asked about 3 years ago in Probate

James’s answer: It is impossible to answer your question without knowing exactly how each of these assets are titled. While you indicate that both you and your former husband are on title to these assets you do not indicate whether you own them as joint tenants or tenants in common. There are different legal ways that two or more individuals can own an asset together, and the way title is held controls what happens upon death. Assets held in joint tenancy are said to have a right of survivorship. What that means is that upon the death of one joint tenant, title is automatically vested in the remaining joint tenants. On the other hand, assets held as tenants in common belong to the named individual and upon that person’s death the asset is part of that individual’s estate and ownership of their interest is controlled by the person’s Last Will or if there is no Last Will then under the terms of the Probate Act. So, if you and your former husband owned the vans as joint tenants, then those vans are your free and clear of any claims of his mother. On the other hand, if the vans were owned as tenants in common then your former husband’s heirs will be entitled to his interest. The house being purchased under contract is a different situation. The terms of the contract will be controlling as to the rights that you and your former husband has in the house. Generally, in Illinois, when you are buying a home on contract no legal title is transferred until you have made the final payment. That does not mean that you do not have any rights, under Illinois law you do get an equitable interest which is entitled to protection. A detailed review of the contract to purchase, the current value of the property and the balance due on the contract is necessary to provide you with proper advice on the home. In addition, there may be certain practical issues that will impact any claim by your former husband’s mother. I recommend that you retain an experienced Probate Attorney to assist you in these issues. Good luck.

Answered about 3 years ago.

Is there a penalty for filling a probate 9 years after a death? What issues am I likely to encounter? : My wife passed away 07/28/08
We live in Spring Grove, Illinois. Lake County
Prior to her death, I thought we put all assets in joint ownership
We both have Wills that leave everything to each other upon our death and
list each other as executors
The Wills are not notarized but our 3 children have signed the Wills
I did not file for Probate since I thought all assets were jointly owned
I recently became aware that our house is solely in her name which she inherited
I have been making payments on a Home Equity Loan for the last 15 years
MY questions: Is there a penalty for filling a probate this long after a death?
What issues am I likely to encounter?

Asked about 3 years ago in Probate

James’s answer: The first question is whether you would even need Probate. First, I will say that Probate can be filed at any time after the death of an individual. There is no penalty for filing Probate so late, with the possible exception of possible creditor claims if the delay was meant to avoid paying or defrauding the creditors. I am questioning the validity of your wife’s and your Last Wills based upon your description of them. I believe that in addition to anything else you need to do, you should meet with an experienced Estate or Elder Law Attorney to review your documents, circumstances and more than likely update your Estate Planning documents. As to the question of Probate, there is a general two-year statute of limitations in regard to pursuing most actions against a decedent’s estate. An exception to that two-year statute of limitations is in regard to claims of the State of Illinois for any Medicaid monies, if any, expended on behalf of your wife. There is no statute of limitations in regard to Medicaid liens on decedent’s estates. If no Medicaid was provided to your wife, and if there are no creditors, then you may be able to transfer it to your name by recording an Affidavit of Heirship and a Quit Claim deed signed by all the heirs, more than likely you and your children. However, I strongly recommend that you see an experienced Elder Law Attorney to discuss this prior to transferring title. If you might possible need Medicaid assistance in your future, these circumstances could provide you with a planning opportunity to protect a portion of the value of your home to be given to your children while not impacting your qualification for Medicaid benefits. That is why it is important that you meet with an attorney who does more than regular estate planning or probate. You need to review your house issue as part of an examination of your overall estate planning with an experienced Elder Law Attorney experienced with the complex rules regarding Medicaid qualifications. Good luck.

Answered about 3 years ago.