When you give someone a gift you sign a check. When you buy a meal in a restaurant you sign a credit card receipt. When you sell your home you sign a deed.

In each of these situations it is your signature which marks that the sale has taken place.

If you wish to give assets to someone after your death something different has to happen. Since you can not sign after you have died, someone’s signature must be substituted in place of yours.

The judge, in probate court, substitutes his or her signature in place of yours. This way any money and property, which was in your name when you died, can get into the hands of the new owner.

This is one of the main purposes of the probate court.

The process is more complicated than I have described but when you boil it down, we are getting stuff out of your name and into the name of the people you let it to in your will.

There is nothing wrong with the process. Probate allows for the orderly passing of assets from generation to generation.

The reasons which most people give for wanting to avoid probate can be boiled down to these:

1. Probate takes too long. Probate generally takes between 1 and 2 years. During the process the family must relive the death of their loved one with each new letter and each meeting with the executor. If the process can be made shorter then the family will be able to come to closure more quickly.

2. Probate costs too much. The fees for Probate in Illinois can average around 5% of the estate. With home values over $300,000, in many cases, it is easy to see why people would like more of their money to go to their children and less to court costs and fees.

3. Probate is not private. The courts are public and so are most court records. Many people I talk with keep their financial matters private during their lives and tell me that they would like to keep their information private even after their deaths. It makes sense, then, to stay keep the estate distribution process private. This can be done by staying out of court.

Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com

Technorati Tags: Avoid Probate, chicago suburbs, elder attorney, estate attorney, livng trust, power of attorney, power of attorney Chicago suburbs

by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

The first President Bush, George H. Bush, signed the Americans With Disabilities Act (ADA) into law in 1990 and now George W. Bush is set to sign the ADA Amendments Act.

The new law straightens out the mess that has been made of the original Law by clarifying what is a protected disability and who needs to make accommodations for people with disabilities. The Amendment reaffirms our commitment as a nation to including people with disabilities in mainstream life.

During the years since the ADA was passed state court decisions have limited the protections of the ADA. State court rulings have effectively excluded people with disabilities from many activities which should be covered under ADA protections.

Groups which champion the rights of those with disabilities have worked long and hard with law makers to rebuild and strengthen protections for those with special needs and for their families.

The new law will contain a more clear definition of what it means to be disabled and who is protected under the ADA. It also does away with, or overturns, some state court rulings that denied ADA protection for some people with disabilities. The law makers who sponsored of the amendment say, it “…fulfills our promise to tear down the barriers of ignorance….”

I see this amendment as the next logical step in the process of fully embracing people with special needs into full membership in our society. Parents of children with disabilities will find it easier to take the entire family out to dinner.

The doors are opening and everyone is invited in.

Technorati Tags: ADA, Disability, disability trust, estate attorney, estate planning chicago

Report by Tom Olofsson, Attorney at Law, www.MyTrustLawyer.com (773) 905-1193

A new report on the abuse of Power of Attorney has been published by the American Bar Association Commission on Law and Aging.

The author, Lori A. Stiegel, explains that there are times when seeking help from a single public agency is not enough. At times help must come from a variety of agencies.

Stiegel uses the example of an aged woman who is taken advantage of by a family member. The story that is told is all to familiar to law enforcement and to attorneys working with older people.

“Victims of durable power of attorney (DPA) abuse or their family members often need help from the adult protective services, civil justice, or criminal justice systems to stop further abuse by the agent and to recover money, property, or other assets from the agent. But sometimes, as in the case example below, victims are sent from one system to another and don’t get the help they need.

The purpose of the report is to inform families of the proper steps to take when the Agent under a Power of Attorney is suspected of abusing their position. The report “informs consumers about DPA [Durable Power of Attorney] abuse and what each system [public service agency] can do to help victims.”

The report is an excellent introduction to the potential pitfals involved in the improper use of Power of Attorney.

I recommend that you download a copy from the ABA website at: http://www.abanet.org/aging/about/pdfs/durable_poa_abuse_fact_sheet_consumers.pd

Technorati Tags: estate attorney, estate planning, estate planning chicago suburbs, last will and testament, living trust