The Difference Between a Will and a Trust

August 29, 2011 § Leave a comment

Everyone has heard the terms “Will” and “Trust”, but not everyone knows the difference between the two, and when you should have one or the other.  Both are essential estate planning tools that serve different purposes.

First, a Will is a legal document giving direction to a Court as to who will be in charge of your affairs after your death and who gets your stuff.  If you have minor children, your Will should also state who you nominate to be the Guardian of your children until they are adults.  Your Will only goes into effect after your death, and your wishes as stated therein are, in effect, “guidelines” to the Probate Court.  You nominate an Executor to be in charge of your affairs, but until an order is entered officially appointing that person as your Executor, you have no one who is authorized to handle your affairs.  The same concept applies to the person you nominate as Guardian of your minor children.

Another important function of a Will is to waive surety.  Unless you have a Will waiving surety, the person who wants to handle your affairs after your death and opens a probate estate must have either (a) a corporate surety or (b) have two individuals sign documents stating they are willing to serve as sureties for the Executor.  A “surety” is a guarantee that if the Executor were to steal money or otherwise waste estate funds, the surety will be on the hook for that money.  A Will can state that no surety is required, thus saving the Executor the trouble of having to get a corporate surety or two individual sureties.

So, what is a trust?  A trust is a contract, or legal arrangement, whereby you name someone today to hold your assets on your behalf (in many cases, this would actually be you) with specific instructions on how to hold and distribute those assets now and when you die.  There are many different kinds of trusts, with many different purposes depending on your needs.  But in any case, having your assets in a trust allows you to avoid Probate.

But won’t I avoid Probate if I have a Will?

No.  Even if you have a Will, your Will has to go through Probate.  What having a Will avoids is having Illinois law determine who your beneficiaries are.

If I die without a Will, won’t everything pass to my spouse anyway?

Not necessarily.  Property that is jointly titled will pass by operation of law to the joint owner.  However, in Illinois, if you have surviving children are entitled to an inheritance as well.  If there is a surviving spouse in Illinois, they are entitled to a spousal award of no less than $10,000, the right to file a “custodial claim” if you were disabled and they cared for you for at least three years, and one half of the remainder.  The other half goes to your surviving children or grandchildren.

I don’t need a Will or a Trust because I have named beneficiaries on all my assets.

If you have named a beneficiary on your assets, that asset will indeed pass to the named beneficiary.  But, have you considered the estate and income tax implications of your designation?  What if one of your named beneficiaries passes before you?  The designation will then lapse and possibly escheat to the state.  Do you want to remember what beneficiary you have on all your assets?  Having an estate plan that includes a Will (or Trust) alleviates that burden.

Can’t I just use a fill-in-the-blank Will form from the internet?

You certainly can, but remember:  you get what you pay for.  Such a fill-in-the-blank form may not take into account Illinois-specific laws.  Additionally, you may have circumstances that aren’t contemplated by the people who created the fill-in-the-blank forms that are meant to cover everyone in a “one size fits all” style.  You should consult with an attorney to make sure your particular needs are covered by your Will.

If I have a Trust, do I need a Will?

Yes.  If you have a trust, you should have a special type of Will called a Pourover Will.  In that case, the purpose of the Will is to put any assets that are not in the Trust, by mistake or for some other reason, into the Trust.

I don’t have a lot of money, would a Trust still benefit me?

Even if you don’t have a large estate, a Trust could still be useful for you.  A trust is often used to do asset protection of even modest estates against the cost of long-term care.  Also, if any of your beneficiaries is disabled, a Trust can be used to hold an inheritance that might otherwise jeopardize their disability benefits.  Further, if you become incapacitated or unable to handle your affairs, a Trust can provide someone to care for your Trust under those circumstances.

If you are interested in finding out whether you need a Will or Trust, or both, call use to schedule a consultation at 815-570-2334.

Every day of every week, Weekly Law is here for you!


Keeping Mom and Dad Safe at Home

August 22, 2011 § 2 Comments

Generally, elderly parents want to remain living in their own home.  However, remaining in the home becomes a concern when children see their parents slowing down, perhaps even having trouble with handling stairs and doing general daily activities.  Yet, with parents’ mental and physical health currently not creating problems, there seems to be no imminent need to search out support services or other accommodations for aging parents.

This is now the time to evaluate the home to make it safe and secure for your loved ones — now and in the near future — in anticipation of aging disabilities that may occur.  Help and support are available.  The nation as a whole is more aware of elderly needs and services and products are becoming available at an outstanding pace.

The Bureau of Labor Statistics states,

Employment of personal and home care aides is projected to grow by 51 percent between 2006 and 2016, which is much faster than the average for all occupations.  The expected growth is due, in large part, to the projected rise in the number of elderly people, an age group that often has mounting health problems and that needs some assistance with daily activities.  Bureau of Labor Statistics — Occupational Outlook Handbook, 2008-09 Edition

This growing need for aides and services also encompasses

  • home remodeling services — making a home more serviceable to the elderly;
  • safety alert systems and technology;
  • motion sensors to monitor movement;
  • telehealth services — using home-based computer systems for the doctors office or a nurse to monitor vital signs; and
  • even a pill dispenser that notifies when it is time to take medication.
Where do you begin to make sure your elderly family member is safe and managing well in his or her home?
Visit often and at different times of the day and night.  Make note of daily activities that appear challenging and where changes might be made to add safety and convenience.  Remove rugs that slide — causing a fall — and move furniture with sharp edges.  Set the water heater at a lower temperature.  This will protect their older sensitive skin from scalds and burns.  Be sure smoke detectors and carbon monoxide detectors are in place.
Bathrooms are a hazard area for the elderly.  Grab bars by the toilet and shower are a must to help prevent falls.  There are easy to install bars at your local hardware store if you want to do the work yourself.  Another item that is good to have is a shower stool or chair.
If you are not sure of what needs to be done, consider hiring a professional.  There are companies that specialize in home remodeling and accommodation for seniors.  Michelle Graham of Accessible Design by Studio G4 says about senior home remodel projects,
The main thing we incorporate in all of our projects is a careful study of needs and potential needs that may develop throughout a client’s lifespan.
Keep in mind what future home adjustments might be needed for your parents to “age in place” in their home.
Home safety or medical alert companies provide GPS-based bracelets or pendants to track the elderly at home who tend to wander.  Or the companies may provide alarm devices such as pendants or bracelets that allow the elderly to alert someone if there has been a fall or a sudden health-related attack.  In the event an alarm has been triggered, a 24-hour monitoring service will alert the family or medical emergency services or call a neighbor, depending on previous instructions.  In addition, there are companies that will install motion sensors in the home to monitor the elderly on a 24-hour basis.
Don’t forget your parents’ community as a valuable resource for helping them stay in their home.  Take Margaret Muller as an example.  At 82 years of age, Margaret lives alone in her small home.  She manages very well with the help of her local Senior Center.  The Center’s “Senior Companion” program sees that Margaret is taken to the store for groceries and other needs and checks in with her often to see how she is doing.  Once a day, the Senior Center delivers a hot healthy meal to her door.  Having these services and visits gives Margaret the help she needs and peace of mind that she is not alone.
Neighbors, local church groups, senior centers and city centers are some places to look for assistance.  Most of the time there is little or no cost for these services.
A few thoughts on hiring home care aides or live-in caregivers
The classifies are filled with people looking for work as aides to the elderly.  Many of these aides are well-qualified, honest people who will do a good job; but, of course, there will be some not so reputable.  If you are looking to hire someone, be sure you interview and check references and qualifications.  You will be responsible for scheduling that person and doing payroll and taxes as well.  Be very sure you hire someone trustworthy, as the elderly seem to trust these helpers more than they should and therefore can easily be taken advantage of.
A professional home care service will eliminate your employment concerns.  Professionally-provided aides are usually bonded and service is guaranteed.  Home care companies take care of the scheduling and payment of their employees.  Home care companies cater to the elderly in their homes by offering a variety of services.  The National Care Planning Council lists many of these companies throughout the country on its website, longtermcarelink.
These providers represent a rapidly growing trend to allow people needing help with long term care to remain in their home or in the community instead of going to a care facility.  The services offered may include:
  • companionship
  • grooming and dressing
  • recreational activities
  • incontinent care
  • handyman services
  • teeth brushing
  • medication reminders
  • bathing or showering
  • light housekeeping
  • meal preparation
  • respite for family caregivers
  • errands and shopping
  • reading email or letters
  • overseeing home deliveries
  • dealing with vendors
  • transportation services
  • changing linens
  • laundry and ironing
  • organizing closets
  • care of house plants
  • 24-hour emergency response
  • family counseling
  • phone call checks
  • and much more.
Thomas Day, Director of the National Care Planning Council states, “Care in the home provided by a spouse or a child is the most common form of long-term care in this country.  About 73% of all long-term care is provided in the home environment, typically by family caregivers.”  As their caregiver, you can make the difference in the quality of life for your aging parents and if staying in their home is a possibility, you have the resources to make it happen.  Make us one of those resources — we have information in our office on local services.  Call us for more information.  815-570-2334.
Every day of every week, Weekly Law is here for you!

Helping Your Older Parents Stay Happy and Healthy

August 16, 2011 § Leave a comment

This week, my blog post is a reprint of an article written by Dr. Robert Stall, a Geriatrician.  I found the article informative and thought you might enjoy it.  And remember, if you are caring for your parents, whether formally or informally, you should consider legal planning to make sure both of you are protected during the process.  A Life Care Plan with my office will give you the care, legal, and financial advice you need to help your parents through the twilight phase of your relationship.  Now, here’s the article:

If you’re fortunate enough to have one or both parents still living, you may have noticed a role reversal taking place in your relationship.  Remember the days when Mom shuttled you to the doctor whenever you were sick?  Now, it may be you who’s driving her to her medical appointments.  Perhaps you’ve become even more involved in managing her healthcare needs — serving as her healthcare proxy, moving her into your home to care for her, or even hainv got select a nursing home for her to live in.

Whatever the case, it’s natural to feel challenged — and yes, intimated — in the role you’ve undertaken.  But if you stay positive and proactive, you’ll be in a great position to advocate for your parents’ optimal care.  And, really, what better way is there to say “Thank You” for all they’ve done for you over the years?

The following six recommendations will help you understand what may be happening to your parents as they age — and what you can do to help.

1.  Stay vigilant to sudden changes.

Typically, sudden changes arise from sudden problems.  Your elderly father who becomes confused one week but was alert and oriented the week before, or becomes unsteady walking and starts falling, is likely experiencing an acute problem — an infection, medication side effect, or perhaps, a heart attack or stroke.

If you pay attention to your parent’s baseline health and behavior, you’ll be alert to sudden, and subtle, fluctuations.  Being attuned to what’s “normal” for your parent is critical in advocating for his care.  By informing his physician of these changes, you help ensure that he receives a proper diagnosis and timely treatment — especially important in acute conditions.

2.  Investigate the source of gradual decline.

Several years ago, I met an elderly woman living in a nursing home.  Her family, assuming she had dementia, had moved her there after she had gradually stopped speaking.

After performing a brief procedure on her, I asked how she was doing.  “I’m okay,” she replied.

A miracle?  Not exactly.  I’d removed bullet-sized pieces of wax from her ears.  She’d stopped speaking because her ears were too plugged to hear.

A host of conditions can cause gradual decline.  Before jumping to the conclusion — as many people do — that Alzheimer’s disease is the culprit, recognize that your parent may be experiencing an altogether different problem:  a vitamin B12 deficiency, an underactive thyroid, Parkinson’s disease or depression, to name a few.

When discussing your parent’s decline with her physician, make sure the two of you consider all the possibilities.  To prepare for the appointment, make notes detailing how her decline has manifested itself — loss of appetite, a failing short-term memory and so forth — and how long you’ve noticed these changes.  That way, you won’t leave anything out.  To help you, I’ve created a free checklist that either you or your parent can complete at — make sure you print or email the “Test Result Details” at the bottom of the page to analyze your responses and give you advice based on your answers.

3.  Know thy parent’s medicine cabinet.

Familiarize yourself with the medications your parent takes:  what each one is for and how often he takes them.  Make sure you notify each doctor your parent visits of all the medicine he takes, including over-the-counter products.  Ask what side effects you might observe from each medication and whether it’s potentially dangerous if your parent takes them together.  You also want to tell the doctor whether your parent drinks alcohol or caffeinated drinks and whether he smokes, as these substances can affect some medications’ efficacy and safety.  To recognize which medications might cause the symptoms your parent experiences, check out

4.  Discourage ageist attitudes.

Simply put, ageism is prejudice against the elderly.  It exists in many forms but can be particularly damaging to an older person’s self-esteem when it assumes that all of her woes are age-related.  Here are a couple of ways of expressing ageism to an elderly parent:

“What do you expect at your age?”

“You’re not getting any younger.”

If you’re ever tempted to utter something similar, remind yourself that by chalking up everything that ails her to her age, you sell your parent short.  If she’s depressed, it may have nothing to do with the fact that she’s 80 and everything to do with a biological predisposition to depression.  And remember that right-knee pain in a 90 year-old can’t be just from age if there’s no problem with her left knee.  (More about Dr. Stall and a more in-depth article on the attitude of society toward medical care for the elderly can be found at article.

5.  Address not just symptoms – but emotions, too.

There is disease and then there is “dis-ease” — that is, a lack of ease, security or well-being.  “Dis-ease” can manifest itself as myriad emotions in an elderly person:  fear, grief, boredom, embarrassment and sadness among them.  The fact is, these emotions can be every bit as debilitating as disease.

Take the case of a parent who’s incompetent.  Too embarrassed to socialize, she cuts herself off from friends.  Without companionship, she becomes lonely.  Instead of allowing her to become a hermit, discuss with her doctor how to address the incontinence.  Together, you can consider different solutions that will ease her embarrassment and reinvigorate her social life.

6.  Strive to maximize your parent’s quality of life.

No matter our age, we all want to enjoy life to the fullest and have the capability to do the things we want to.  Improving the enjoyment of life and a patient’s functional ability are the cardinal goals of geriatric care.  But you don’t need a medical diploma on your wall to help you parent achieve either of those goals.

Being there to solve a problem or provide company are tremendously worthwhile services you can provide — no expertise required.  Remember, as your parent gets older, his quality of life becomes more important to him than how much longer he lives.  And he doesn’t necessarily need medications or surgery to ensure that he’s living the latter part of his life to the fullest.

If he enjoys books but has difficulty reading regular-sized type, check out sight-saving titles at the library.  If he’s grieving the loss of his best buddy, introduce him to new acquaintances at the senior center.  If he’s living in a nursing home, bring your kids there to share a meal with him.  Sometimes it’s the small gestures that have the most profound impact.  As the child of an elderly parent, you are uniquely positioned to deliver these life-changing gifts.

Dr. Robert Stall is a geriatrician practicing in Tonawanda, NY and a clinical associate professor at the University of Buffalo’s School of Medicine and Biomedical Sciences.  He serves as medical director and attending physician at Beechwood Homes in Getzville and Blocher Homes in Williamsville.  To learn more about senior care issues, visit his website at or call 716-213-4345.

Every day of every week, Weekly Law is there for you!

For more information, feel free to give us a call at 815-570-2334.

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