Practice Areas and Legal Definitions

Illinois Probate:

Probate is the legal process of transferring property following a person's death. Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes their intentions as to the transfer of their property at the time of their death (typically through a Will), their property is collected, certain debts are paid from the estate and the property is distributed accordingly.

Illinois Wills:

A Will is a written instrument containing directions on how the assets and property of the testator (individual creating the Will) shall be divided upon his or her death. Wills can also contain instructions regarding the care of minor children, gifts to charity and formation of posthumous trusts. In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses, and he or she must be mentally competent and not acting under duress or under the controlling influence of another.

Will Contest Litigation:

A Will Contest is a type of litigation that challenges the admission of a Will to probate. Issues that are likely to spur the contesting of a Will include:

• the testator lacked mental capacity; i.e., was senile, delusional, or of unsound mind at the time the documents were created
• the testator was subjected to fraud, coercion or undue influence during its creation and implementation
• there are ambiguities in the document, or
• the Will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.

If the Will is thrown out, the court may disallow only the part of the Will that was challenged or throw out the entire Will of the decedent, distributing the property as if the person died without a Will, or use the last previous Will, depending on state law and the specific facts and circumstances.

Illinois Trusts:

Trusts are estate-planning tools that can replace or supplement Wills, as well as help manage property during life. A trust manages the distribution of a person's property by transferring its benefits and obligations to different people. By maintaining assets in a Trust, it is often easier to minimize taxes and leave a larger inheritance. A Trust is also a way to provide a steady income to the Beneficiary over the course of time, rather than distribution in a lump sum. This strategy can reduce the Beneficiary's tax and allow the Trust to grow through investment, and keep assets free from creditors of the Trust beneficiary. Trusts can also be established for the benefit of charitable organizations.

Probating Estates:

Estates are categorized as probate or non-probate property. Probate property is property that is transferred by the provisions of a Will. Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

Illinois Estate Planning:

Good estate planning is more than just a simple Will. Estate planning minimizes potential taxes and fees, such as the transferring of assets at the lowest possible Federal and State gift and estate tax, and sets up contingency planning to make sure wishes regarding health care treatment are followed before and after death. A good estate plan also coordinates what happens to a home, investments, business, life insurance, employee benefits (such as a 401K plan) and other property in the event of disablement or death.

Estate tax and other estate-related issues are hot legislative items, with new laws being passed on a regular basis. A competent and experienced estate planning lawyer is critical in assuring that your unique estate planning goals are understood and carried out. To discuss your estate planning options, please contact Huck & Brisske, LLC today.

Illinois Powers of Attorney:

Powers of Attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person (the principal), to another (attorney-in-fact or agent).

When a person becomes incapacitated, the government or the court often steps in and appoints someone to represent and make legal decisions that the person would have to make. One of the ways to avoid government or court intervention and the appointment of a stranger to act as your guardian is to use a Power of Attorney. A Power of Attorney is a written document stating that one person gives to another the full power and authority to represent him or her or it can be limited in scope. There are two types of Power of Attorneys; one covering assets and one covering health care decisions.

If you or someone you know throughout the greater Chicago metropolitan region needs the assistance or legal counsel of an experienced probate lawyer, contact Huck & Brisske, LLC, today at 866-435-0751, or use the contact form provided on this site to schedule your free initial consultation.

Estate Planning Frequently Asked Questions

What is Probate?

Probate is a process whereby the Court supervises the transfer of assets from the deceased person to his or her heirs and requires the filing of particularized and complicated legal forms. Attorneys Kevin Huck and Heinz Brisske can promptly respond to your questions and inquiries and assist you with the probate and estate administration process in a professional, courteous and timely manner. If an Estate Tax Return (Form M-706) is required, they have the expertise and ability to promptly take care of this important tax requirement, and are able to assist with other types of probate matters:

• Petition for probate of estate
• Conservatorships
• Will and trust contests
• Estate and trust administrations

How is a Will probated?

The following is a simplified outline of the general probate process:

• The original Will is deposited with the Court.
• The Executor named in the Will or Administrator is appointed. Executors and Administrators are commonly referred to as Personal Representatives.
• The Personal Representative files a Petition for Probate of the Estate.
• For approximately four months from the date of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
• During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.
• When the four-month claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
• If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.

The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, claimants not being notified in the original four-month claim period, etc.

Are there different types of Wills?

There are many types of Wills:

• A Double Will is one in which two people join together; leaving their individually-owned property and estate(s) to the other. This type of Will is also called a Counter Will, Joint and Mutual Will, or Reciprocal Will.
• Holographic Wills are entirely handwritten, dated and signed by the testator.
• A Living Will, Medical Directive or Health Care Directive is one that authorizes the continuance or cessation of life-sustaining medical treatments from an individual who is incapable of making that decision due to debilitating circumstances.

Who should make a Will?

Every adult person should consider making a Will. Each year a large number of people die without Wills, leaving major decisions in the hands of the state of Illinois. Wills are especially important for parents of children who are under eighteen, as arrangements for the children's financial support and/or appointed guardian can be determined. Without a Will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect inheritance. And in some states, if you were married and childless, your parents could split your property with your spouse if not alternatively predetermined in a Will.

How does a trust work?

Trusts are the process by which the grantor transfers legal ownership to a person or institution (called the trustee) to manage the property for the benefit of another person (called the beneficiary).

Trusts create a fiduciary relationship between the trustee and the beneficiary. The trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property. A grantor may also name themselves as one of the beneficiaries of the trust.

What about Health Care Provisions and Powers of Attorney?

Illinois extends the delegation of decision-making power to cover health care issues including the withholding or withdrawal of life support treatment by means of a Power of Attorney for health care. Through this Power of Attorney, you have the right to designate an agent who can make treatment decisions for you in instances where no communication is possible because of your medical condition.

In addition to health care considerations, it is also important to have a power of attorney available to handle various legal and financial matters in the event you become mentally incompetent. For example, a surviving spouse can be given a Power of Attorney to handle her incompetent spouse's salary checks, social security benefits and to make other legal and financial decisions.

What are Estate (Death) Taxes?

Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate less allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death. Your gross estate also will include the following.

• Life insurance proceeds payable to your estate or, if you owned the policy, to your heirs
• The value of certain annuities payable to your estate or your heirs
• The value of certain property you transferred within 3 years before your death
• Trusts or other interests established by you or others in which you have certain powers

The allowable deductions used in determining your taxable estate include:

• Funeral expenses paid out of your estate
• Debts you owed at the time of death
• The marital deduction; generally, the value of the property that passes from your estate to your surviving spouse

If you or someone you know throughout the greater Chicago metropolitan region needs the assistance or legal counsel of an experienced probate lawyer, contact Huck & Brisske, LLC, today at 866-435-0751, or use the contact form provided on this site to schedule your free initial consultation.

Professional Biographies

Huck & Brisske, LLC practices exclusively in estate planning and estate and trust administration throughout the greater Chicago region. Illinois trust Attorneys Kevin Huck and Heinz Brisske are seasoned estate planning lawyers, with combined legal experience exceeding 55 years.

The Firm's seasoned wealth transfer attorneys have developed relationships with professional men and women who work in the estate planning and administration arena. These professionals include accountants, financial planners, life insurance agents, stock brokers, appraisers, trust officers, personal bankers and others.

Please call Huck & Brisske, LLC, today at 866-435-0751, or complete the contact form provided on this site to schedule your free initial consultation with a trus ted Illinois estate planning attorney.

Huck & Brisske, LLC

1325 North Main Street
Wheaton, IL 60187-3579
Phone: 866-435-0751

Kevin J. Huck, Attorney

Profile:

Attorney Kevin J. Huck received his Bachelor of Arts degree from Bellarmine College, in Louisville, Kentucky, and his law degree from IIT-Chicago Kent College of Law in 1973. He was employed with a Fortune 500 company in its Federal Tax Research Department and was a Trust Officer at a major bank in Chicago from 1973 to 1975. Attorney Huck has been engaged in the private practice of law since 1975 concentrating in the area of Estate Planning. He is a member of the DuPage County and Illinois State Bar Associations, and is past President and Director of the DuPage County Estate Planning Council.

Practice Areas:

• Trusts & Estates
• Corporations

Bar Admissions:

• Illinois , 1973

Education:

• Illinois Institute of Technology, Chicago - Kent College of Law, J.D., 1973
• Bellarmine University, Louisville, KY, B.A., 1968

Professional Memberships:

• DuPage Estate Planning Council
  • Former President and Director
• DuPage County Bar Association
• Illinois State Bar Association

Heinz J. Brisske, Attorney

Profile:

Attorney Heinz J. Brisske received his law degree from Duke University School of Law in 1974. He received a certificate of completion of prescribed specialization courses in Estate and Personal Financial Planning from John Marshall Law School in 1995, and an LLM degree in Taxation from the same institution in 1997. Attorney Brisske currently concentrates his practice in the areas of Estate Planning, Estate Administration, Estate and Gift Tax Planning and Trust Administration. He is a member of the DuPage County and Illinois State Bar Associations, is past Chairman of the Estate Planning and Probate Committee of the DuPage County Bar Association and is a member of the DuPage County Estate Planning Council. He also served on the Board of Directors for, and is a member of, the Suburban Chicago Planned Giving Council.

Practice Areas:

• Estate Planning
• Estate Administration
• Estate and Gift Tax Planning
• Trust Administration
• Business Succession Planning

Bar Admissions:

• Illinois , 1974

Education:

• John Marshall Law School , L.L.M. Taxation, 1997
  • With Honors
• Duke University School of Law, J.D., 1974
• Monmouth College , A.B., 1971
  • Cum Laude
  • Blue Key Honorary Society

Professional Memberships:

• DuPage County Bar Association
  • Former Chair, Estate Planning and Probate Committee
  • Former Chair, Business Law Committee
• Illinois State Bar Association
• DuPage Estate Planning Council
• National Academy of Elder Law Attorneys (NAELA)
• Wealth Counsel

Published Works:

• Estate Planning Traps and Pitfalls , DCBA Brief, 1995
• Implementation of and Substitutes for Advance Medical Directives , DCBA Brief, 1996
• The Family Limited Partnership: An Overview , DCBA Brief, 1997

Classes/Seminars Taught:

• Gift & Estate Tax Update, DuPage County Estate Planning Council, 1996 - 1999
• Frequent Speaker, DuPage County Bar Association, Estate Planning and Probate Committee Seminars

Foreign Languages Spoken:

• German

Corey L. Schultz, Attorney

Profile:

Attorney Corey L. Schultz received her Bachelor of Arts degree from Valparaiso University in 2000, and went on to receive her law degree from the Valparaiso University School of Law in 2003. Upon becoming licensed, she was employed with a law firm concentrating in the areas of Estate Planning, Probate, Residential Real Estate and Corporations. As an associate at HUCK &BRISSKE, Ms. Schultz continues to focus in the areas of Estate Planning, Post-Death Estate Administration and Elder Law.

Current Employment Position(s):

• Associate

Areas of Practice:

• Probate
• Trust Administration
• Estate Planning
• Elder Law

Bar Admissions:

• Illinois: 2004
• Colorado: 2003

Education:

• Valparaiso University School of Law, Valparaiso, Indiana, 2003, Juris Doctor
  • Honors: Valparaiso Legal Clinic - With Honors
• Valparaiso University, Valparaiso, Indiana, 2000, Bachelor of Arts
  •  Major: Political Science, Minor: Writing

Specialized Domestic/International Legal Studies:

• Cambridge, England Summer Law Program, 2001
• Lutheran Washington DC Consortium Spring Semester, 1999

Professional Associations and Memberships:

• DuPage Estate Planning Council, Member
• DuPage County Bar Association, Member
• DuPage County Estate Planning & Probate Committee, Member
• Illinois State Bar Association, Member