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Struck v. Cook County Public Guardian, 387 Ill.App.3d 867, 327 Ill.Dec. 213, 901 N.E.2d 946 (1st. Dist, 2008). A family member of a disabled person who is not the guardian does not have a right to visit the disabled person or contest the guardian’s decision concerning vistitation in court. However, a family member or anyone else can bring to the attention of the court acts of the guardian that are not in the best interests of the ward and may also challenge the appointment of the guardian or the guardianship itself on behalf of the ward.

What is a marital deduction trust?

This allows the deductible gift to the surviving spouse to be made in trust so a trustee can manage the investments. The tax law provides that the gift, while not absolute, still qualifies for the marital deduction if the spouse must get all the income and has the power to say who gets the money remaining in the trust at his or her death. This is usually used together with a family or credit shelter trust which takes advantage of the credit to pass $3,500,000 tax free. Remember the spouse can get all the income from that trust too, but cannot have the power to say who gets the remaining assets of the family trust on his or her death. That power would cause the family trust assets to be in the surviving spouse’s taxable estate.

NOTE: There currently is no Federal or state estate tax or generation skipping tax. The gift tax is still in effect. Whether or not the estate and generation skipping taxes will be reinstated this year is not known. Many people expect that they will be reinstated, but what will happen is not known. What the rates and exemptions will be if the taxes are reinstated is also not known.

Contact Don Thompson for all of your Chicago estate planning needs.

Vena v. Vena, 387 Ill.App.3d 389, 326 Ill.Dec. 305, 899 N.E.2d 522 (2nd Dist., 2008).  A trust provision which allows a majority of the income beneficiaries to approve the trustee’s accounting is against public policy and unenforceable against the other benficiaries.

Citizens National Bank of Paris v. Kids Hope United, Inc., 386 Ill.App.3d 1084, 325 Ill.Dec. 687, 898 N.E.2d 734 (4th Dist., 2008). A gift in trust for the benefit of a named charity until it ceases to operate or exist or until it ceases to operate in its then present capacity, does not lapse or terminate when the charity merges into another charity so long as the surviving charity is carrying out the purposes of the gift and has a similar purpose and function. This was affirmed by the Illinois Supreme court in an unpublished opinion, No. 107787, 12/19/09.

In re Estate of Fallos, 386 Ill.App.3d 831, 325 Ill.Dec. 746, 898 N.E.2d 793 (4th Dist., 2008). A plenary guardianship is not appropriate where the ward, although physically disabled, is able to make and communicate decisions as to his or her care. However, the nature of the physical disability may call for some level of limited guardianship.

Laubner, et al v. J.P. Morgan Chase Bank, N.A., 386 Ill.App.3d 457, 325 Ill.Dec. 697, 898 N.E.2d 744 (4th Dist., 2008). A trustee has a duty to each beneficiary and cannot favor one over the other. When a trust provides that the trustee pay so much of the income and principal to the current beneficiaries as the trustee deems advisable for their care, support and maintainence and the trustee pays them 3.5% of the principal each year, that is not an abuse of discretion simply because the trustee seeks to preserve principal, nor does it mean the trustee is favoring the remaindermen. Protecting the principal protects the current beneficiaries also. (The trust said the primary object was support of the current beneficiaries.)

Woolard v. Woolard, 547 F.3d 755 (7th Cir., 2008). A trust for a monor beneficiary that allows distributions for the minor to be made to a guardian or to a custodian under the Uniform Gifts To Minors Act does not authorize the trustee to make distributions to the father of the beneficiary. A trustee’s powers are determined by the terms of the trust and if the trustee fails to administer the trust according to its terms a breach of trust results. The trustee is liable for any resulting loss. The trustee must keep records demonstrating the purpose of the distributions and how they are benefiting the beneficiary and must get receipts. The fact that the money is distributed to the father of the beneficiary does not allow the distribution or excuse the lack of records.

The organs, tissues or parts of a decedent’s body may be donated to hospitals, doctors, schools, organ banks or storage facilities, organ procurement agencies or individuals for research, therapy or transplantation. The gift may be made by the decedent while alive or by certain persons in the order designated by statute in the case of someone who has died. The persons who may make the gift in the order they may act are:

1) agent under power of attorney for health care;

2) designated health care surrogate at the time of death;

3) guardian of person at the time of death;

4) spouse;

5) any adult child;

6) either parent;

7) any adult brother or sister;

any adult grandchild;

9) a close friend who can provide an affidavit demonstrating facts showing the relationship and familiarity with the decedent’s health, social history and religious and moral beliefs;

10) guardian of estate at the time of death;

11) anyone authorized to dispose of the body.

If the decedent expressed a desire not to donate or there is reason to believe the gift is contrary to the decedent’s religious beliefs or a person with priority objects, the gift cannot be made. Only persons in the highest priority class available can consent.
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The estate tax overhaul enacted by Congress last December allows each of us to transfer up to $5 million during life or at death to our children or other heirs, tax-free. That’s up from a $2 million estate tax exclusion as recently as 2008, and means that few families will end up paying the 35% federal estate tax.

But that doesn’t mean less-wealthy folks can simply ignore the new law. Married couples in particular need to get acquainted with a special new break for widows and widowers to make sure they are prepared to take advantage of it. Starting this year, a surviving spouse can add any unused estate tax exclusion of the spouse who has just died to his or her own $5 million exclusion. This dramatic change enables spouses together to transfer up to $10 million tax-free.

As of now, this new spousal “portability” (as tax geeks call it), applies only to deaths in 2011 and 2012. It will expire, as will the $5 million exclusion, on Dec. 31, 2012, if Congress doesn’t act before then. But note: President Obama’s proposed budget for fiscal 2012 would make portability permanent. And portability for married couples has so much support that no matter what political currents bring, it is probably here to stay.
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Probate is the process of doing the following under court supervision:

1. Getting court recognition of the decedent’s will, if any;

2. Establishing who are the decedent’s heirs (the will says who gets the decedent’s property , but if there is no will the decedent’s heirs get the property);

3. Getting someone appointed by the court with power to administer the estate (this person is called an executor if there is a will and an administrator if there is no will.

4. Identifying and collecting the deceased’s assets;

5. Ascertaining who the creditors are and paying them;

6. Filing any necessary tax returns and paying the taxes;

7. Accounting for all the property, income and expenses to the heirs or legatees;

8. Making distribution of what is left after payment of all expenses.

The degree of court supervision varies. Usually there is minimal court involvement and the process is called independent administration. However, anyone involved can get the process converted to a supervised administration. In that case almost all acts of the executor or administrator require court approval. This includes acts such as selling, leasing, mortgaging and investing.

Probate proceedings are usually filed in the county where the decedent lived.

For more information on probate, visit Chicago probate lawyer Don Thompson.