This Primer will help you understand the Probate process. Please read it and call us for a consultation.What is Probate?
Probate is the process by which your assets and liabilities are marshaled and distributed to your heirs following your passing.What is a Will?
A Will expresses your wishes for the disposition of property after you pass. In that case you are the maker of the Will or Testator. Wills accomplish several goals:
- Dividing and distributing assets;
- Making your final arrangements;
- Liquidating your property; and
- Allocating the proceeds of sale.
To be valid a Will must have been created by, or under the direction of, the Testator while of sound mind. Once created, the Will can be changed or revoked at any time through the use of a separate writing known as a Codicil as long as the Testator is still of sound mind.The Role of the Executor in Probate
Every Will appoints a person or an institution known as an Executor to oversee distribution and treatment of the Testator’s property, which is referred to as the Estate. Assets contained in the Estate are distributed by the Executor in accordance with the rules of Probate, a court proceeding that
- Determines validity of the Will
- Grants the Executor authority
- Resolves disputes among heirs
- Oversees collection of property
- Oversees property distribution
- Confirms children’s guardian
A Power of Attorney (PoA) for Property is a document by which a Grantor gives their Agent some measure of control over the use and disposition of property. The amount of control given, and the length of time that the power is to endure, can vary. The Grantor may choose a
Durable Power of Attorney (always in effect): A Durable PoA prevents you from exercising control over your own property until it is revoked; which may be too late to stop certain actions from taking place.
Springing Power of Attorney (effective later): A Springing PoA can be ineffective if you are in an accident or suffer illness that renders you incapable of acting for yourself or activating the PoA.
Both types terminate when the Grantor dies.Fiduciary Duties
Being appointed as someone’s Agent is a big responsibility. If the Grant’s PoA is written broadly enough the Agent can effectively run that person’s affairs even while he or she is alive. That puts a heavy burden on the Agent, who must conduct themselves in the best interest of the Grantor. Once appoints the Agent becomes what is known as a Fiduciary. That means the Agent takes on duties such as
Honesty and Loyalty;
Good Faith and Fair Dealing
known collectively as Fiduciary Duties.
The Agent appointed by a Power of Attorney for Healthcare can consent to or withhold permission for medical professionals to administer care to the Grantor, including
- Withholding life support;
- Withholding treatment; or
- Consenting to a surgery
However, the power of the Agent only comes about when the Grantor is deemed unable to decide for themselves due to, for instance, grave illness, mental incapacity, coma, etc.
In the absence of a Healthcare PoA, Illinois statutes provide their own means of determining who should make health care decisions for the incapacitated party. The order prescribed in the law proceeds as follows
- The legal guardian of the incapacitated person;
- The living spouse of the incapacitated person;
- Adult children of the incapacitated person; or
- Surviving parents of the incapacitated person
A Living Will applies in the limited circumstances in which you suffer from an incurable condition. In such a case a Living Will permits the Agent to instruct medical professionals to withhold, or to withdraw, treatment: but only if you are diagnosed with an incurable condition that will in all medical likelihood result in death.
The document can cover a variety of scenarios such as terminal conditions during pregnancy, the withdrawal and withholding of nutrition and hydration (i.e. the Terry Schaivo case), and even post-mortem disposition of your remains.
Note that while such issues can also be resolved via the Healthcare PoA, physicians in Illinois will only follow directives contained in a Living Will.
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