One day after their mother was murdered, they were sitting in my conference room. Three devastated daughters had brought their mother’s red accordion folder that was perfectly organized. Their mother had told them that if anything happened to her, she wanted them to know that she had organized all her affairs so that everything would be in order. One of the daughters reached into the folder and said they were pretty sure their mother had a Last Will and Testament. My heart sank.
Understanding the difference between a will and a trust and taking action, prior to trying circumstances, can help to relieve extreme emotional toll on any family.
I knew that if their mother had a Will, there would be a long, expensive and painful road ahead. The Will would have to be filed and a Probate estate would be required to be opened. The process would prolong the daughters’ grief and prevent closure for at least 18 months. However, it was potentially far worse.
Their mother was murdered by their step-father who then committed suicide. Since, as it turned out, she died without any estate plan, and her husband survived her, he was entitled, by law, to 50% of her estate pursuant to the Spouses Elective Share. As it stood, the man who murdered her would inherit 50% of her children’s rightful estate. Since he then took his own life, his daughter from another relationship would then inherit his estate. We filed a petition under the Slayers Statute to deny him from profiting from his homicide and after a long process and evidentiary hearing, we prevailed.
Comprehending the difference between a will and a trust cannot be underestimated. the difference between a will and a trust
However, if she had a fully funded Living Trust estate plan, all of this could have been avoided. Like most people, she tried to do the right thing, and just did not know there was a much better option for her intent and to protect her childrens’ inheritance.
In Illinois, and in other states, anyone who owns property has the right to transfer that property to any person or entity, including transfers that would set aside the statutory rights of a spouse under the elective share law.
While you might not relate to this exact situation, it is one of many uncertainties that could prove to defeat your best intentions for your family. Other examples include a surviving spouse remarrying and your children being disinherited, outdated or omitted as beneficiaries on life insurance policies or deferred savings accounts.
A properly drafted and funded Living Trust remains the best way to protect your intentions, avoid a lengthy and costly probate process as well as provides for your family in the most efficient way. Knowledge protects you.
We are your Chicago Living Trust Attorneys.
Read more information on Living Trusts and a copy of our estate planning brochure.