Creating, Updating and Reviewing Your Estate Plan During COVID 19

As of the posting of this article, the Illinois Department of Public Health has confirmed more than 240,000 cases of COVID-19 and 8,115 deaths. Given the state of the world, now is as important as ever to ensure you have a current and valid estate plan.

Despite the fact that many other viruses share symptoms with coronavirus, it is important to protect yourself both medically and financially. No one can predict the future and the possibility of a vaccine being developed soon is probably just as likely as another rise in cases.

Whether life as we knew it returns sooner or later, there is no denying that the past six months have changed what we consider “normal.”

For that reason alone, it is important to protect your assets, your health and provide for those you care about using your estate plan.

Updating & Reviewing Last Wills and Testaments?

When was the last time you reviewed your last will and testament? Is it up to date? Have there been any major changes regarding the beneficiaries? Do you presently have a last will and testament?

If not, the contents of your estate may be subject to time-consuming probate court proceedings.

If you do, have any changes occurred which would otherwise render it outdated?

For example, have any named representatives passed away? New beneficiaries added or removed from your family? Do you need to add specific gifts?

If so, it’s likely time to update or create your last will and testament.

Does just writing down your intentions constitute a valid will?

No, in Illinois, a will that is not witnessed by at least two individuals is considered a holographic will. Holographic wills are not considered valid under Illinois law.

A will additionally needs to be signed by the testator (decedent) and notarized to be valid. 

Updating Revocable and Living Trusts

Similar to the examples provided above under last will and testaments, there is reason anyone with a revocable trust to have it reviewed at this time. It is important to remember that while drafting your trust is the first major step in protecting your asset, the trust itself needs to be funded. When referencing “funding,” we are referring to the act of transferring property into the name of the trust.

For example, if you want your trust to be the beneficiary of any retirement account(s) you may hold, you will need to transfer the account into the trust’s name. This can be done by completing transfer forms with just about any financial entity. 

Similarly, if you own any parcel of real estate, under Illinois law, your estate is likely subject to probate proceedings. Many individuals preparing their estate plan do so to avoid probate. In this scenario, the property needs to be deeded into the trust. If you own real estate used to generate income, such as a rental property, that property can be deeded into the trust and provisions established for the benefit of named beneficiaries within the trust.

Going even further, you can tailor the provisions to allow for specific disbursements to the beneficiaries at given intervals (typically at various ages) to prevent a beneficiary from spending through their trust interest. 

Designating your Trustee

For most trust settlors, they act as settlor and as the original trustee. You can then name a successor trustee to take over those duties when you pass away or when you can no longer manage the trust.

One of the most important considerations in preparing your trust (and as a rule of thumb for estate plan documents in general) is to make sure the individual you name as your trustee (agent) is someone who is willing, and who you trust, to carry out the terms of your estate plan.

Unlike the agents for your Power of Attorneys, described below, the trustee has a fiduciary duty to beneficiaries named in your trust and can potentially be opened to liability for taking actions to the detriment of the beneficiaries.

For this reason, again, it is important to name a trustee you trust. Additionally, you can name as many successor trustees as you want. This is a useful tool in the event your initial trustee passes away or becomes incapacitated and cannot act as trustee. 

What is a Property Power of Attorney?

A property power of attorney allows you to name a designated agent to handle your financial affairs in the event you become incapacitated. “Financial affairs” include, but are not limited to, day-to-day expenses, paying your bills, investment accounts you may manage, and any real estate you have an ownership interest in.

Additionally, if you are an individual who needs assistance with your day-to-day needs, a property power of attorney can provide authority for the agent to carry out those needs.

What does a Healthcare Power of Attorney Do?

A healthcare power of attorney allows you to name a designated agent to make healthcare-related decisions on your behalf. This document can grant your agent very broad authority or can limit it to your specific wishes. 

Similarly, a living will is usually used in conjunction with the healthcare power of attorney and last will and testament to express your wishes with regard to the use of life prolonging treatment. It is recommended to include this document with your estate plan.