This week on Pink Mic Legal Confessions, we cover the why, what, and when of estate planning. Join experienced attorney Stephanie Garces for a breakdown of the facts and myths of will and trust creation.
good afternoon everyone welcome to pink mic legal confessions i am stephanie garces donat the attorney at garces law firm as you know i usually have a guest on this show but today we're doing things a little bit different today i'm going to be addressing a couple of the most frequently asked questions that i receive whenever i am in a consultation or perhaps someone messages us to try to figure out what is it that we actually do so i'm hoping to sort of demystify some of the stuff that everyone has questions about so the first thing is um what is estate planning we talk a lot about this on this show it's primarily a big part of what i do at my law firm but what actually is estate planning so the most basic way to explain this is that estate planning is essentially a legal way to leave everything in order regarding your affairs that means that you make decisions about who's getting what whether that's money your house anything that you own who's getting it is it your kids is it your neighbor is it your loved ones or do you want to donate to a charity some people leave their money to charity or to their pets yes that is a thing so essentially estate planning is really just a legal way and the most effective way to really protect your assets in the event of an unexpected event like death also it can also be used for in the event that you can make decisions for yourself if you became incapacitated um which is not necessarily the same as death but it still is a way to manage that so um estate planning does a couple of things for you it actually can really just protect your assets so that they don't end up in court and a court does not have to get involved with who's getting what you know it basically leaves instructions to your family and to anyone else that you want to leave your things to again without court supervision this is important because a lot of people have this worry and they worry a lot about what would happen in the event that i'm gone what would happen if my spouse were to leave this earth before me what happens if we were to leave at the same time those are questions that are addressed in estate planning so that's really what it is in a big um big scheme of things and it's the most basic way to explain it
now one of the questions i get all the time and it's also very common is people will ask well what happens to my property if i die without a will or a trust or any type of estate plan now this is a great question because people will say well i always was told or they'll say someone told me that i could do it this way and it would work but nine out of ten times i always tell people that these laws exist for a reason so when you die without a will and or a trust essentially your property has no beneficiary that means that no one automatically has a right to the property now you're probably wondering well what if i have kids or what if i have a spouse don't they get it right away well the answer is it depends you know i was gonna say that right it depends because we don't actually know without really looking into it who is the owner of the property but let's just say in a world where there is nothing in place someone dies unexpected and they didn't have a chance to put together something for that property property again does not have an automatic beneficiary so that means that the house is up for grabs but no it's not really up for grabs but what i really mean by that is that sometimes if somebody wants to sell the house upon someone passing away that did not leave a will or did not leave um a trust there is a way sometimes to still get around having to go to court which is a conversation for another day and it has to be a certain set of facts but for the most part if there's property that somebody owns and they pass away without a will or a trust to actually pass that property to their family members then a court has to intervene and they usually end up in probate court which is a whole another court case and it actually is expensive it's time-consuming and it's a headache for most people but it's the legal way to make sure that the property ends up within the family or it could be sold depending on who is part of the family and who actually survived the person that passed away all of those factors matter so you really end up in not a great place whenever you pass away unexpectedly or expectedly without any sort of estate plan so that is basically how you handle that now a couple of questions i get always revolve around um you know for example a title to the property a lot of people will call about why should i put my house in a you know trust or put together an estate plan as opposed to just doing it with the title now i get calls about this all the time so why do we care about this mainly the reason why you should do an estate plan instead of putting it someone on a title to transfer the property it's because the trust for example that actually is used for as an estate planning tool to transfer that property has more power it has more protection and it actually accounts for not only if you pass away but it also addresses the issue of if you became incapacitated who can really maneuver the property and handle anything that has to do with it that's what a trust does as opposed to title title is just a fancy way of saying i have this piece of paper and i've put my sister on here and she's going to be the owner when i pass away that might be true but we don't actually know if that's all that's accounted for in your estate i mean your house is one fraction of the things that you probably own so transferring someone to title does really know justice for what you actually need in the event something happens so a lot of times it's very recommended if possible to try to get something in order try to make sure that the house is protected you could think about putting it in a trust super effective and your family will thank you for it the reason is because if you put the house in the trust if you were to pass away then we already have a plan the house is already spoken for you basically left instructions also the same thing happens if you become incapacitated if you can't make decisions on your own behalf at some point that's what a living trust does for a house which adding someone to title doesn't so they're two different ways to basically handle property although having an estate plan is the most stronger the more effective and long term the least expensive option as opposed to just adding someone to title because adding someone to title again does not foresee some of the other legal ramifications that could come up once you're no longer here so i hope that answers a question because it is a good question and we get a lot of people calling about that the other question that i get that's actually very common um and actually is one of the ones that i think most people want to know about is um what is probate what is probate why does this exist what is it great question again uh probate is a section of the court where a judge presides over someone's estate why does this exist well typically it's because the person that has passed away for the most part ends up in probate because they don't have an estate plan an order they don't have a will they don't have a trust now probate basically does a couple of things it actually asks the judge to get involved to help make sure that the assets that you have are taken care of meaning somebody is in charge and typically the court has to intervene to make sure to appoint somebody or if there is no disagreement and used to have someone in your family that would do it that works too but the point is is that probate tends to still be a legal process in that when someone is passed away the estate has to go and open up the case before the judge and if there is an executor because believe it or not if you have a will you could still up in probate you can end up there even though you never intended to that is one of the biggest myths and we'll talk about that a little bit later it's one of the biggest myths in estate planning that if you have a will you will not go to probate and i'm here to tell you that that is not true for the state of illinois now you're probably wondering what does probate do and how long does it take well it essentially just gets everything in order it actually asks permission from the court to oversee the estate making sure that all the assets are taken care of if there's people like creditors that the person that passed away owes money to that also gets taken care of during that it's very very long and it's it's a cumbersome process but you know in our county uh cook county and i'm saying cook because that is the one that comes to mind is most popular although collar counties are the same you're looking at an average of about 14 months or longer depending on if there's any disagreements and by the way speaking of disagreements probate does handle that as well so if you have a family member that is not in agreement with the way things are being done or perhaps um you know something is is being discussed regarding the house that no one is in agreement with the people that have outlived the person that has passed away for example like children of someone that has passed away they can go um in a probate court and make sure that those things get handled and again the court supervising overlap so that is probate in a nutshell and um probate is quite expensive long and but definitely necessary in the event that you end up there because there is no estate plan in place so probate can really be a whole discussion for another day but that is really what probate is meant to do now one of the biggest questions that we get about probate is can probate be avoided because it kind of sounds like a place where nobody wants to be well
like i said probate is avoidable at all costs if you have the proper estate plan in order this means you have a trust this means you have everything in order legally meaning properly drafted by an attorney it's valid it's signed etc all the requirements that are required by the state of illinois that is a way to avoid probate however the state the estate planning that you put together it has to be that it encompasses everything so what does that mean that means that the estate plan that you put together has to account for all of your assets that means that everything has been put into the estate plan it basically creates a wall for everything i always describe it as a basket it's like a basket everything is in your basket when you pass away with the proper estate plan yes you can avoid probate however every so often we'll see sometimes that someone has for example bought a new home and the home was not mentioned in the estate plan because that person did not update their plan that is a way that you end up in probate so basically the takeaway is if there's any changes that happen economically or someone changes their mind about how the estate plan is drafted or perhaps they accumulate more assets more things you would want to update your estate plan so that you can avoid probate that's the best way to avoid it and yes it is avoidable another question that we get is how can my family benefit from an estate plan in general now before i get into this i just want to say if you're watching this i really hope you at least consider the most basic estate plan a will a trust or if it's more complicated we need more complicated trusts but the point is is that you want to make sure you have something in order because it actually does benefit your family so sometimes people will say well i don't have a lot that's not necessarily a reason not to have one not to have an estate plan no matter how basic it is but the reason i'm promoting this is because your family does benefit from having an estate plan i always say that when you create an estate plan you're doing it for yourself but you're in fact you're actually doing it for your family for the people that will outlive you and when something happens to us in this world because we're all going to end up in the same place um it ends up that the living are the ones that have to deal with everything so having an estate plan is really a way to plan for your family in the event something unexpected happens it leaves instructions for your family for the things that you wanted how did you want to divvy up that money that you have in your account how did you want to distribute the um the assets that you have perhaps you have a sports car a lot of people have nice cars they want to leave to someone perhaps you want to leave a family heirloom maybe you have a ring or something that is from grandma and you want to pass that on who do you leave that to another really popular thing that estate planning does is it creates a list of guardians that would step in for your children if something were to happen to you and or your spouse or significant other the reason that's important is because again if you have this in order your family will certainly benefit from it they'll actually be thanking you when you're no longer here because it's already set in stone that you've picked out the people that are going to be managing your affairs the people that are going to be raising your children in the event you can't raise them because you're no longer here those things matter and so if that is you uh definitely think about estate planning as a way to only benefit your family it doesn't um do anything bad for your family outside of maybe a couple people getting mad because they didn't get what they wanted but the point is is that they're really your wishes and your wishes only and so it really creates a blueprint for your family of what is going to happen who gets what and having children and being able to choose who raises them is a powerful thing so estate planning really gives power back to the family members that are actually doing this it gives power back to the parents the parents that have a say who would raise my kids if something happened to me um as opposed to if you don't have anything then your family isn't benefited because now a court has to get involved um especially with guardianship so those are types of things that really do uh well for your family it really benefits you and there is nothing wrong with um discussing with your family because at the end of the day this does benefit your family in the long run to protect you in the event of an unexpected absence so there's a number of reasons why estate planning is very important especially as you um progress through your life whether you're single you're married you're starting a family you're retiring et cetera et cetera no matter what stage in life you are in an estate plan always always benefits you and your family
now sometimes um we'll have a question about the differences a lot of people these days will go on google they've done their own research they'll say i did my research and i i get the gist of it but what they have a question about quite often is what is the difference between a will and a trust and the most basic way to explain this because it is quite confusing if you start googling things and a lot of legalese the basic difference is that a will essentially leaves a letter to the judge more than anything um to your family quite frankly that says this is who's going to own my things this is who's going to be in charge of my affairs i want to be buried or cremated if you have any wishes upon that some people donate their body to science that's what the will does you can put that in there um anything sentimental you can also you know pass on through the will but it just covers you know who's getting what with the personal property um but the trust has a lot more weight has a lot more power has a lot more protections than the will now if you were watching earlier i did mention to you that having a will does not avoid probate so you could still end up in the probate court spending thousands of dollars just to make sure that the rest of your assets are protected and that we appointed someone to properly manage your affairs especially when it comes to real estate your houses or house now the trust the something completely different it has more protection in that it can actually act as a protection i told you it's like a basket everything's included in there it transfers upon your death there are no questions asked no court supervision no court involvement that is the benefit of having the trust as opposed to the well where you could sell enough in probate and the court has has to get involved anyway the trust avoids probate the trust also transfers the property i told you earlier that there is no automatic beneficiary to real estate so the trust actually moves the property however you desired it to be moved upon your death so that is a big difference between a trust and a will and again with the proper estate planning order everything regarding probate is avoided with a trust which is very different and in contrast to a will that is the biggest difference in a nutshell
now another question that we get a lot is about the house and um assets so what happens if i do not have family to leave assets too that is a great question because not everyone has a family to leave something to well you could certainly still put in a safe plan together but we would actually dive into that and think about your options some people may choose to leave their assets to a charity that's actually very popular a lot of people will have a charity that is near and dear to their heart so they'll make sure to leave it to the specific charity of their choice that doesn't necessarily mean that you have to do that plenty of people will leave it to a family member that's maybe i should say maybe not a family member but perhaps a family friend um someone that is just a friend to them in general doesn't have to be related to them you can really leave your assets to anyone that you wish now you're probably wondering well who would want to leave it with some stranger well i didn't say stranger but i'm definitely saying someone that's not related to you so i just want to make sure i make the distinction there you could really leave your assets however you wish but without a plan your assets actually are worse off because you don't have anyone well technically family members for example that you could leave it to so you certainly don't want it to end up with someone who's a far far far far distant cousin who you've never met so usually when we're talking about leaving assets but you don't have family well we can always explore options and usually during a consultation we talk about that there are a number of options you can do regarding that sense of of its facts so those sort of facts are basically something that we talk about during that time now um i should also mention that same thing if you were to leave your this earth i should say without any estate planning you don't have family again you do have to end up in probate and you don't want to end up there if you can avoid it i certainly would by the way probate in general is expensive as i mentioned and a lot of times the attorneys get paid out of the estate itself if possible um if there are no assets or if no one else is willing to pay the for the services and the court fees there is a way to do it otherwise but it's still expensive and and if you can avoid it you should now um the best question i get in one of my favorites is when should i set up my estate plan now that is a great question because it's one of the most common misconceptions that you should only create an estate plan once you have a family once you've gotten married once you've reached a certain level of economic status and i can tell you for sure that is not the case i always say you want to do it as soon as possible if you're watching this video you're watching everything that we're talking about you don't have anything in place there's no better time in the present the reason for this is because you never know when things are going to happen you never know if you were to have an accident and can't make decisions for yourself because as you know you can only enter into estate plans and do all of these paperwork that we're talking about while you're living while you're well meaning you can make decisions on your behalf so if you're healthy and and you're able to make decisions correctly without any assistance now and you don't have anything in place there's no reason not to wait um excuse me there's no reason to wait um waiting really doesn't do anything other than create more worry and so i always say having an estate plan in order gives you peace of mind it gives you peace of mind until you actually need it until it actually becomes something that has to be reviewed and usually that's when there's been a change in the life circumstances or someone is trying to make sure that they um can follow the instructions that you left them so in general you should certainly not wait you should do it as soon as you can and there's no reason why you would want to not proceed with that at this point in your life unless there is a reason why which most times there isn't a reason other than the person is no longer here or they can't make decisions on their behalf but for the most part you don't want to wait i would say as soon as possible for that another thing is that we get a lot of questions for business owners business owners i am one of them uh we always worry about our business so one of the questions i always get is how can my business benefit from an estate plan and having a business and having your own you know your livelihood i should say connected to what you do every day and into your income every every month there's a lot of assets to protect you know if something were to happen to you if you're a business owner you may question you know what would happen who would be in charge did you want someone to take over the business would you want to close the business would you want the person in charge to just take the business and sell it if there's any value to it those types of questions are ones that we ask business owners when they think about their plan of what's going to happen to my business so you can certainly benefit from having an estate plan as a business owner for your business because you leave again instructions for those who are living and then there's no dispute as to what's going to happen how do they access things those are things that come up when something happens and there's no plan with the business so one of the really important things that we do even with with clients that don't own a business is we make sure that you have everything available to your family passwords access to accounts we make sure that your accounts for your business and for your checking for example and savings account actually all have the proper person in order so that they can actually access the money because that is the hardest thing to do when there's no estate plan is accessing some of the money some of the uh documents that that people need and so we certainly work with business owners to do that and your business will definitely benefit from having that because again there is no way to automatically leave it without to someone unless it's in writing and it's legal which is what our job is so those are the most common questions that i get with estate planning and i would be delighted if any of you have any questions for me after these live because it could be something that you personally are dealing with or perhaps you don't really know where to start so i'm happy to address your questions at any point i know that sometimes it seems a little intimidating to ask questions because you don't actually know you know what to ask we do have a website which you see here at the bottom of the screen if you wanted to um you know chat you can chat with us you don't even have to call some people prefer that you can chat your question at our website and you can ask any question that you need and we do offer free consultations in spanish and in english if you want to do it in person we can we can also do it from the safety of your own home doing it via zoom and that's really all it is and they're free and there's nothing wrong with a free 30-minute consultation as long as you learn something that you may need in your life during that time so again any questions or concerns you can always let me know and we're always here to help your needs with the estate planning with real estate as well if there's any questions regarding probit we can also help with that matter but these are very very important topics that we discuss here because a lot of times people have it on their mind i have so many people that come in and say i'm so worried about this oh it's on my to-do list i've been thinking about doing this and it could be years years will go by but if you don't prioritize your family you don't prioritize your legacy it can really cost your family a lot of pain and a lot of money so that's why a lot of people will do an estate plan so feel free to drop your questions um below during the live or you can always message us later to see if there's anything that we can help um answer with the frequently asked questions so we'll do a couple of these as we proceed with the pink mic legal confessions but feel free to always reach out if you have anything else to add i want to thank everyone who watched today and i feel free to talk to you anytime that you guys need you have my number you can always call make an appointment and we look forward to seeing you here on tuesdays at one o'clock thank you for always watching peak my glial confessions we'll see you next week