A will is a formal set of instructions to your loved ones and the court telling it what to do with your kids and your stuff after you pass away. If you do not have a lot of assets and you do not anticipate your family fighting over anything, a will may be a good choice.

To enforce a will, a probate lawsuit needs to be filed. Probate cases take a lot of time and can be expensive. It also makes a lot of your private information publicly accessible. If you end up with a messy contested probate case, a lot of money that you wanted to pass on to your family will end up going to lawyers instead of your family. Many families create a trust to avoid this.

A trust is an agreement for someone to hold property for the benefit of another. A trust is created and managed by a trust agreement. Think of a trust like a suitcase – the trust agreement is the instructions of what to do with the things in the suitcase and designates a person (called the trustee) to be in control of the things in the suitcase. And in fact, you can be the trustee and be in control of all your property while you are alive.

A power of attorney is a legal document that gives one or more persons the right to act on behalf of another person as their agent. A power of attorney is very useful if you become disabled because it can allow the person you choose to conduct your affairs. A power of attorney can give your agent the power to manage your property (real estate, investments, etc.) and your health care decisions.

This is a document that allows someone else to manage your personal property and real estate. If you become disabled, having a valid power of attorney for property will allow you to access these assets and sell or transfer them if you need to.

This document allows someone else to make health care decisions for you if you are unable to communicate your wishes. If you are married, your spouse is usually your first choice for this, but it is also important to choose a second person in case something happens and your spouse is not around.

In Illinois, a transfer on death instrument allows the owner of residential real property (a home) to choose one or more people who will receive an interest/ownership in the property upon the owner’s death. This instrument allows your house to directly pass to the people you want without having to go to court or pay a title company a bond to sell or refinance the property.

Clearly tell the court who you want to take care of them. When parents pass away and leave minor children behind, a guardian needs to be appointed by the court to take care of the children. You can clearly tell the court who you want to be appointed by creating and properly signing a will that clearly explains who you want to take care of your kids.

When choosing who should take care of your kids, you should have at least a first, second, and third choice. You also want to make sure that some of these people are younger, in case something happens a little further down the road.

A second critical part of making sure your kids go to the right person is a temporary guardianship. A temporary guardianship clearly shows the court who you want to take care of your kids. If you are disabled, a temporary guardianship can also protect your kids from being in the custody of the State while a guardian is formally appointed. This is a critical part of any estate plan that is frequently overlooked.

A temporary guardianship form to authorize your first choice to be a guardian if you are disabled and unable to care for your kids. This may avoid your kids being temporarily in the custody of the State while a court case is opened for a judge to formally appoint a guardian.
A medical power of attorney so you can authorize a family member or babysitter to have access to your children’s medical information.
A HIPPA authorization form for each of the kids for the same reasons listed above.

Coordination with your accountant, financial planner and insurance provider to make sure your team knows your wishes and your plan and works together to make sure everyone is taken care of the way you want.

Leave clear instructions on what to do with it. You could just leave your family a nice letter, but there’s no guarantee they will follow your directions and wishes. The two most common ways of providing instructions on what to do with your stuff are through a will or trust. A will allows your family to go to court to enforce your wishes. A trust usually avoids the trip to the courthouse and puts a family member you choose in charge of getting your stuff to the right people.

It depends on who is on the title of the home and how much control you want over who it goes to. For most married couples, the house is owned by both you and your spouse with rights of survivorship. That means if one of your passes, the house automatically goes to the other.

The tricky question is what happens to the house if you are the only owner or both you and your spouse pass away. In this case, the state of Illinois will tell your family who gets the house (through the laws of succession). If you want to do something different, a will or a trust will allow you to decide who gets the house.