Hinch Law

This is our third post on changes to Illinois law for 2015 affecting estate planning.   The first covered the amended Health Care Power of Attorney act and the second addressed the amended "Small Estate Affidavit" found in the Probate Act. A new Article IVa was also added to the Probate Act for 2015, on "Presumptively Void Transfers." The new section seeks to prevent fraud or undue influence by a caregiver inducing their ward to pay the caregiver a significant legacy/bequest payable on or after the death of the ward, due to the vulnerability of the ward.  The statute is carefully drafted to exclude certain family members of the ward, but does include as a "caregiver" the spouse, cohabitant, child, or employee of the person actually providing the care. Thus a caregiver could not circumvent the statute by asking the ward to name the caregiver's spouse in the ward's will, instead of the caregiver herself. The significance of the bequest is se...

This is the second in a series of posts about changes to Illinois estate planning law for 2015.   The first post went over changes to the Power of Attorney Act , and particularly the new "Statutory Short Form" Power of Attorney for Health Care .   Article 25 of the Probate Act , on "Small Estates," was also significantly changed. The Small Estates portion of the Probate Act provides the option for a representative of a decedent to prepare and sign a "Small Estate Affidavit" to be provided to a bank or other financial institution or person holding estate assets, to facilitate payment and release of the estate's assets as directed in the affidavit.  For eligible estates, the Small Estate Affidavit serves as a short-form, expedited process that can be used in lieu of a formal probate filing.  Eligibility is primarily determined by the assets the decedent's personal estate not exceeding a total value of $100,000. The Affidavit itself is a form ...

January 1, 2015 ushered into law several significant changes to Illinois estate planning law.  In this series, we'll take a look at some of them and how these changes might affect your estate plan.  Let's begin by taking a look at a very important part of every estate plan - the Power of Attorney Act .   Unlike a Will, a Power of Attorney authorizes someone (your "agent") to act on your behalf while you are still living. The Illinois Power Attorney Act, 755 ILCS 45, has four Articles. The Title (Article I), Durable Powers of Attorney (Article II), the Statutory Short Form POA for Property (Article III), and Powers of Attorney for Health Care (Article IV).  Article IV is the only one that was changed effective January 1, 2015 (there were a few changes to Article II made effective in July 2014) and is the focus of this post. The Health Care Article IV of the Power of Attorney Act contains a Statutory Short Form Health Care POA within it, and this form was c...

Normally when folks think of a "joint bank account," such as between a married couple, the common sense presumption is that both are owners of the entire account, right?  That form of ownership is called Joint Tenancy.  You may be familiar with it from application in real estate; it also applies to personal property, based on the Illinois Joint Tenancy Act, 765 ILCS 1005 , et. seq.  One of the key provisions of an asset owned by two or more people in joint tenancy is that, if one of the owners dies, the surviving joint tenants still own the whole asset; the asset is not part of the deceased owner's estate (called a "right of survivorship"). This was the subject of dispute in the recent case Konfrst v. Stehlik , __ Ill.App.3d __, Case No. 1-13-2113 (1st Dist. June 20, 2014), in which the executor of a decedent's estate sought to recover assets from such joint accounts from the other account holder.  The decedent was a widow and opened the subject accounts a...

"How often do I need to review (or update) my Will?"  There is no magic answer to that question; instead generally speaking it is good to review your estate planning documents whenever life changes occur.  These would include marriage and divorce, having or adopting a child, death in the family, moving, and coming into an inheritance, as just a few examples. Sometimes a client will ask this question while cringing at a perceived self-serving response from the attorney, requiring the client to come back to the attorney repeatedly, and thus incurring more cost.  Regular reviews with your attorney are helpful like "checkups" to ensure you still have a "healthy" estate plan that meets your needs. Those needs change over time, and the law is constantly evolving as well.  In light of these constantly changing dynamics, it would be unrealistic to view estate planning as a "one and done" process. To help with this question, consider the "Who,...

Over the past few months I've had the opportunity through the Illinois State Bar Association  on two occasions to provide continuing legal education presentations about commercial general liability (CGL) insurance and coverage of defective construction.  This can be a tricky area and the law can vary by jurisdiction; the Illinois line of governing cases differs from other States. An insurance policy is essentially a contract between the insurer and the insured, consisting of 1) the declarations, 2) the insuring agreement, 3) conditions, 4) exclusions, and 5) endorsements.  In the CGL world, many insurers use a variation of a nationally standardized form.  One thing that trips folks up is that some of the endorsements seem to say there should be coverage for certain things (for example, defective work done by a subcontractor) and so the temptation is to put the cart before the horse. In Illinois, you don't even get to the endorsements unless the court first finds ...

The Illinois Appellate Court, 1st District recently released its opinion in People v. Smith , affirming a circuit court's award of summary judgment on claims alleging a contractor violated the Consumer Fraud and Deceptive Business Practices Act  (CFA), the Home Repair and Remodeling Act  (HRRA), and the Illinois Roofing Industry Licensing Act .  The trial court awarded $50,000 damages and, in a first for an HRRA case to the best of my knowledge, permanently enjoined the contractor from "future home repair and remodeling work in Illinois." The case was brought by the Illinois Attorney General against the individual contractor personally, as well as two corporations for which he served as agent.  Apparently several consumers had filed complaints with the Attorney General alleging that they had hired this contractor to do home repair and remodeling work and paid a significant down payment, but that the contractor had never completed the work nor returned their mone...