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Bankruptcy Start to Finish

Adoption is a legal procedure which establishes a new family relationship between the adopting parents and the child who is being adopted. After the completion of the adoption process, the adopting parties have the same rights, duties and responsibilities as the child as the birth-parents would have had.
There are four basic categories of adoption: the adoption of a related child; an adoption in which the child is placed by a licensed adoption agency; a non-related adoption in which the child is not placed by a licensed adoption agency; and the adoption of an adult.
Some general rules apply to adoption proceedings. Although a single or divorced person can adopt a child, both the husband and wife must join in petition if there is a marriage. This is true even if one of the adopting parents is the birth-parent f the child. A child who is over the age of fourteen ears must consent to the adoption.
After completion of the adoption, a new birth certificate is normally issued for the child. The new birth record will show the adoptive parents as the mother and father at the time of birth of the child. The original birth certificate is placed into a sealed file that can be examined only with the permission of the Court.
In a related adoption, at least one of the adoptive parents is related by blood or marriage to the child. An example of this type of adoption occurs when the mother and father of the child are divorced from each other and the mother has remarried and wishes to adopt the child with her new spouse. The birth-father of the child must either consent to the adoption or must be found to be an unfit person by the Court. The adoption laws list a number of reasons why a Court can determine that the birth-parent is an unfit parent. Among those reasons are the failure of the parent to sow a reasonable degree of interest, concern or responsibility as to the welfare of the child or the abandonment of the child by the birth-parent.
Other related adoptions may include adoptions by grandparents, uncles and aunts, or brothers or sisters.
Agencies which are licensed by the State of Illinois may place children for adoption with parents who have been licensed to take children into their homes. The agency will interview the parents and examine their home before placing a child with them. It is not necessary to be rich or to have a large home in order to adopt a child. The commitment and love of the adoptive parents are important factors which are considered by the agency. The needs of the specific child and the ability of the adoptive parents to meet those needs are always carefully considered by the agency in choosing a home for the child.
When a birth-parent decides to place a child for adoption with an agency, the parent signs a document which surrenders the child to the agency for the purposes of permitting the agency to place the child in the home of the adoptive parents. The surrender signed by the parent ends that parent’s legal relationship to the child. If only one parent signs a surrender, the other parent must be found to be unfit by the Court before the non-consenting parent’s rights can be terminated.
The child is usually in the home of the adoptive parents for at least six months before the final order is entered which completes the adoption process. This period is designed to ensure that the new relationship is successful. If the adjustment is not satisfactory, or if the adoptive parents to not wish to complete the adoption, the agency will remove the child from the original adoptive home and make a new adoptive plan for the child.
In this type of adoption, the child is adopted by unrelated parents and no state-licensed agency is involved in making the placement. The adopting parents are not permitted to pay any money to the mother in return for her agreeing to the adoption. Children cannot be bought or sold legally in this state. The adoptive parents can pay only the medical expenses connected with the birth of the child.
The biological mother of the child must consent to the adoption. Her consent cannot be taken until at least three days after the child’s birth. This is to ensure that she has had time to recover from the physical stress of the birth process. Once a parent consents to the adoption of the child, and the consent is properly witnessed by a judge or authorized agency, the consent cannot be revoked. The biological father of the child must also either consent to the adoption or be found to be an unfit person whose consent is not necessary.
An investigation of the home of the adoptive parents is conducted after the child is placed with them. The adoption will not be completed until six months after the placement of the child in the home of the adoptive parents. This period is to ensure that the home is suitable for the child and that the physical and emotional needs of the child are being met.
An adult can be adopted in Illinois. One of the adopting parents must be related to the child or else the person adopted must have lived in the home of the adopting parents for at least two consecutive years. The adult must consent to being adopted.
Never leave the scene of an accident in which you or your car were involved. No matter how slight the collision, if you fail to stop you may subject yourself to criminal prosecution, even though the accident was not your fault. Stop your car as soon as possible without further endangering any person or property, and without obstructing traffic. Do whatever is necessary to warn oncoming traffic in order to prevent further accidents. If possible, station someone in a position to warn approaching vehicles. At night, use flares or reflectors or your flashlight, if available.
If any person has been hurt, call a doctor or an ambulance, or both. Until help comes, do all you can to help the injured, but be careful. Unless you are proficient at rendering first aid, don’t try it. You may make matters worse instead of better. For example, moving an injured person may aggravate the injury.
Policemen are trained to handle any situation that may result from or arise after an accident. If you are involved in an accident, even though you are not physically injured, you may suffer from shock and excitement which makes it difficult for you to think clearly at the time. Let the policeman take over when he arrives. He will handle any emergency and investigate the accident. His report of investigation may be helpful to you later if you are sued, or if you decide to sue someone else.
If the accident occurs within the limits of a city, village or town, call the municipal police. If it occurs on the open highway, call the nearest State Police Station or the County Sheriff’s Office.
The motor vehicle law of Illinois requires the driver of any vehicle involved in an accident to give his name, address and the license number of the vehicle he is driving to the other party. If it is requested, the driver must exhibit his driver’s license. Leaving th escene of an accident without furnishing such information may subject you to criminal prosecution.
If you collide with a vehicle which is unattended, the law requires you to locate the operator or owner of the vehicle and tell him your name and address. If you cannot locate the owner, leave a written message stating your name and address and the circumstances of the collision in a conspicuous place or in the unattended vehicle.
The best policy is to give no more information than the law requires. Do not comment on the cause of the accident, and do not admit fault even if you think you were in the wrong. You may discover later that the other driver was equally or more to blame. In addition, immediately after an accident you will most likely be emotionally or physically upset to such an extent that you will be unable to accurately appraise the situation. There will be a time for explanations later. No one has the right to force you to give an opinion as the cause of the accident, at police headquarters or elsewhere. You have the right to consult a lawyer before making a statement.
Just as the law requires you to give certain information, you are entitled to the same information from other person involved in the accident. Do not fail to obtain this information. In addition to the names and addresses of the person actually involved, make an effort to obtain the names and addresses of all persons who witnessed the accident. Witnesses may be important later if legal action becomes necessary. Also, if reasonable to do so:
Makes notes of the important aspects of the collision to help you remember them.
Diagram the exact position of the vehicles before and after the accident.
Step off skid marks and other important distances.
Such precautions may prove invaluable in the event that legal questions develop.
If you have any doubt at all about your own condition or that of the passengers in your vehicle, see your doctor immediately for an examination and ssk your passengers to do likewise; then be guided by the findings.
Notify you automobile insurance company immediately and cooperate with your insurance representatives in their investigation.
In addition, Illinois law requires you to file a written report of any accident in which you were involved which resulted either in the death or injury to any person and in most accidents where property damaged occurred. Failure to file a report may cause you to lose your license. A report form may be obtained at any police station or sheriff’s office. The place where the report should be filed appears on the form. The filing of the report should be within ten days after the accident.
An arrest, either of you or the other party, does not necessarily indicate liability for the accident. However, a statement of guilt or a plea of guilty to a traffic ticket, may be used as an admission, so it is important that you obtain legal advice if you are arrested. Receiving a ticket is an arrest.
If you are not certain of your rights, consult a lawyer of your personal choice. Your insurance company will always be represented by trained adjusters or by an attorney.
You should ignore any attempt by a representative of the other party to influence you against the advice of your own attorney. Furthermore, beware of an attorney or anyone representing an attorney who approaches you with a request to handle your case. Solicitation of business is an unethical practice in the legal profession. Solicitation by non-lawyers is illegal and a violation of state law.
If you lose work, sustain injuries or have other losses, you may be entitled to reimbursement under your own policy of insurance if the conditions have been met. You may also be entitiled to damages from the other party to the accident.
Awarding monetary damages is the law’s method of putting the wrongfully injured party, as closely as possible, into a position equal to that position before he was injured. If u are in the right you may be entitled to recover money for the following:
Nature, extent and duration of injuries.
Pain and suffering from injuries.
Disability, both temporary and permanent.
Reasonable expenses resulting from injury, including medical and hospital expenses.
Loss of Income
Value of damage to property.
The motor vehicle law of Illinois requires that all motor vehicles intended for use on public highways be covered by liability insurance. Certain vehicles are exempt from the requirement including inoperable or stored vehicles that are not operated. You must also have within the vehicle proof of insurance usually in the form of an insurance card. The law allows the Secretary of State to request verification of insurance from you. Violations of this provision will result in significant financial penalties and may result in loss of driving privileges.
A bankruptcy discharge releases the debtor from personal liability for certain specified types of debts. In other words, the debtor is no longer legally required to pay any debts that are discharged. The discharge is a permanent order prohibiting the creditors of the debtor from taking any form of collection action on discharged debts, including legal action and communications with the debtor, such as telephone calls, letters, and personal contacts.
Although a debtor is not personally liable for discharged debts, a valid lien (i.e., a charge upon specific property to secure payment of a debt) that has not been avoided (i.e., made unenforceable) in the bankruptcy case will remain after the bankruptcy case. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien.
The timing of the discharge varies, depending on the chapter under which the case is filed. In a chapter 7 (liquidation) case, for example, the court usually grants the discharge promptly on expiration of the time fixed for filing a complaint objecting to discharge and the time fixed for filing a motion to dismiss the case for substantial abuse (60 days following the first date set for the 341 meeting). Typically, this occurs about four months after the date the debtor files the petition with the clerk of the bankruptcy court. In individual chapter 11 cases, and in cases under chapter 12 (adjustment of debts of a family farmer or fisherman) and 13 (adjustment of debts of an individual with regular income), the court generally grants the discharge as soon as practicable after the debtor completes all payments under the plan. Since a chapter 12 or chapter 13 plan may provide for payments to be made over three to five years, the discharge typically occurs about four years after the date of filing. The court may deny an individual debtor’s discharge in a chapter 7 or 13 case if the debtor fails to complete “an instructional course concerning financial management.” The Bankruptcy Code provides limited exceptions to the “financial management” requirement if the U.S. trustee or bankruptcy administrator determines there are inadequate educational programs available, or if the debtor is disabled or incapacitated or on active military duty in a combat zone.
The timing of the discharge varies, depending on the chapter under which the case is filed. In a chapter 7 (liquidation) case, for example, the court usually grants the discharge promptly on expiration of the time fixed for filing a complaint objecting to discharge and the time fixed for filing a motion to dismiss the case for substantial abuse (60 days following the first date set for the 341 meeting). Typically, this occurs about four months after the date the debtor files the petition with the clerk of the bankruptcy court. In individual chapter 11 cases, and in cases under chapter 12 (adjustment of debts of a family farmer or fisherman) and 13 (adjustment of debts of an individual with regular income), the court generally grants the discharge as soon as practicable after the debtor completes all payments under the plan. Since a chapter 12 or chapter 13 plan may provide for payments to be made over three to five years, the discharge typically occurs about four years after the date of filing. The court may deny an individual debtor’s discharge in a chapter 7 or 13 case if the debtor fails to complete “an instructional course concerning financial management.” The Bankruptcy Code provides limited exceptions to the “financial management” requirement if the U.S. trustee or bankruptcy administrator determines there are inadequate educational programs available, or if the debtor is disabled or incapacitated or on active military duty in a combat zone.
Not all debts are discharged. The debts discharged vary under each chapter of the Bankruptcy Code. Section 523(a) of the Code specifically excepts various categories of debts from the discharge granted to individual debtors. Therefore, the debtor must still repay those debts after bankruptcy. Congress has determined that these types of debts are not dischargeable for public policy reasons (based either on the nature of the debt or the fact that the debts were incurred due to improper behavior of the debtor, such as a debtor’s DUI court fines).
There are 19 categories of debt excepted from discharge under chapters 7, 11, and 12. A more limited list of exceptions applies to cases under chapter 13.
Generally speaking, the exceptions to discharge apply automatically if the language prescribed by section 523(a) applies. The most common types of nondischargeable debts are certain types of tax claims, debts not set forth by the debtor on the lists and schedules the debtor must file with the court, debts for spousal or child support or alimony, debts for willful and malicious injuries to person or property, debts to governmental units for fines and penalties, debts for most government funded or guaranteed educational loans or benefit over payments, debts for personal injury caused by the debtor’s operation of a motor vehicle while intoxicated, debts owed to certain tax-advantaged retirement plans, and debts for certain condominium or cooperative housing fees.
The types of debts described in sections 523(a)(2), (4), and (6) (obligations affected by fraud or maliciousness) are not automatically excepted from discharge. Creditors must ask the court to determine that these debts are excepted from discharge. In the absence of an affirmative request by the creditor and the granting of the request by the court, the types of debts set out in sections 523(a)(2), (4), and (6) will be discharged.
A slightly broader discharge of debts is available to a debtor in a chapter 13 case than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts for willful and malicious injury to property, debts incurred to pay nondischargeable tax obligations, and debts arising from property settlements in divorce or separation proceedings. Although a chapter 13 debtor generally receives a discharge only after completing all payments required by the court-approved (i.e., “confirmed”) repayment plan, there are some limited circumstances under which the debtor may request the court to grant a “hardship discharge” even though the debtor has failed to complete plan payments. Such a discharge is available only to a debtor whose failure to complete plan payments is due to circumstances beyond the debtor’s control. The scope of a chapter 13 “hardship discharge” is similar to that in a chapter 7 case with regard to the types of debts that are not included in the discharge. A hardship discharge also is available in chapter 12 if the failure to complete plan payments is due to “circumstances for which the debtor should not justly be held accountable.”
In chapter 7 cases, the debtor does not have an absolute right to a discharge. An objection to the debtor’s discharge may be filed by a creditor, by the trustee in the case, or by the U.S. trustee. Creditors receive a notice shortly after the case is filed that sets forth much important information, including the deadline for objecting to the discharge. To object to the debtor’s discharge, a creditor must file a complaint in the bankruptcy court before the deadline set out in the notice. Filing a complaint starts a lawsuit referred to in bankruptcy as an “adversary proceeding.”
The court may deny a chapter 7 discharge for any of the reasons described in section 727(a) of the Bankruptcy Code, including failure to provide requested tax documents; failure to complete a course on personal financial management; transfer or concealment of property with intent to hinder, delay, or defraud creditors; destruction or concealment of books or records; perjury and other fraudulent acts; failure to account for the loss of assets; violation of a court order or an earlier discharge in an earlier case commenced within certain time frames (discussed below) before the date the petition was filed. If the issue of the debtor’s right to a discharge goes to trial, the objecting party has the burden of proving all the facts essential to the objection.
In chapter 12 and chapter 13 cases, the debtor is usually entitled to a discharge upon completion of all payments under the plan. As in chapter 7, however, discharge may not occur in chapter 13 if the debtor fails to complete a required course on personal financial management. A debtor is also ineligible for a discharge in chapter 13 if he or she received a prior discharge in another case commenced within time frames discussed the next paragraph. Unlike chapter 7, creditors do not have standing to object to the discharge of a chapter 12 or chapter 13 debtor. Creditors can object to confirmation of the repayment plan, but cannot object to the discharge if the debtor has completed making plan payments.
The court will deny a discharge in a later chapter 7 case if the debtor received a discharge under chapter 7 or chapter 11 in a case filed within eight years before the second petition is filed. The court will also deny a chapter 7 discharge if the debtor previously received a discharge in a chapter 12 or chapter 13 case filed within six years before the date of the filing of the second case unless (1) the debtor paid all “allowed unsecured” claims in the earlier case in full, or (2) the debtor made payments under the plan in the earlier case totaling at least 70 percent of the allowed unsecured claims and the debtor’s plan was proposed in good faith and the payments represented the debtor’s best effort. A debtor is ineligible for discharge under chapter 13 if he or she received a prior discharge in a chapter 7, 11, or 12 case filed four years before the current case or in a chapter 13 case filed two years before the current case.
The court may revoke a discharge under certain circumstances. For example, a trustee, creditor, or the U.S. trustee may request that the court revoke the debtor’s discharge in a chapter 7 case based on allegations that the debtor: obtained the discharge fraudulently; failed to disclose the fact that he or she acquired or became entitled to acquire property that would constitute property of the bankruptcy estate; committed one of several acts of impropriety described in section 727(a)(6) of the Bankruptcy Code; or failed to explain any misstatements discovered in an audit of the case or fails to provide documents or information requested in an audit of the case. Typically, a request to revoke the debtor’s discharge must be filed within one year of the discharge or, in some cases, before the date that the case is closed. The court will decide whether such allegations are true and, if so, whether to revoke the discharge.
In chapter 11, 12, and 13 cases, if confirmation of a plan or the discharge is obtained through fraud, the court can revoke the order of confirmation or discharge.
A debtor who has received a discharge may voluntarily repay any discharged debt. A debtor may repay a discharged debt even though it can no longer be legally enforced. Sometimes a debtor agrees to repay a debt because it is owed to a family member or because it represents an obligation to an individual for whom the debtor’s reputation is important, such as a family doctor. What can the debtor do if a creditor attempts to collect a discharged debt after the case is concluded?
If a creditor attempts collection efforts on a discharged debt, the debtor can file a motion with the court, reporting the action and asking that the case be reopened to address the matter. The bankruptcy court will often do so to ensure that the discharge is not violated. The discharge constitutes a permanent statutory injunction prohibiting creditors from taking any action, including the filing of a lawsuit, designed to collect a discharged debt. A creditor can be sanctioned by the court for violating the discharge injunction. The normal sanction for violating the discharge injunction is civil contempt, which is often punishable by a fine.
May an employer terminate a debtor’s employment solely because the person was a debtor or failed to pay a discharged debt?
The law provides express prohibitions against discriminatory treatment of debtors by both governmental units and private employers. A governmental unit or private employer may not discriminate against a person solely because the person was a debtor, was insolvent before or during the case, or has not paid a debt that was discharged in the case. The law prohibits the following forms of governmental discrimination: terminating an employee; discriminating with respect to hiring; or denying, revoking, suspending, or declining to renew a license, franchise, or similar privilege. A private employer may not discriminate with respect to employment if the discrimination is based solely upon the bankruptcy filing.
If the debtor loses or misplaces the discharge order, another copy can be obtained by contacting the clerk of the bankruptcy court that entered the order. The clerk will charge a fee for searching the court records and there will be additional fees for making and certifying copies. If the case has been closed and archived there will also be a retrieval fee, and obtaining the copy will take longer.
The discharge order may be available electronically. The PACER system provides the public with electronic access to selected case information through a personal computer located in many clerk’s offices. The debtor can also access PACER. Users must set up an account to acquire access to PACER, and must pay a per-page fee to download and copy documents filed electronically.
Entitled Liquidation, contemplates an orderly, court-supervised procedure by which a trustee takes over the assets of the debtor’s estate, reduces them to cash, and makes distributions to creditors, subject to the debtor’s right to retain certain exempt property and the rights of secured creditors. Because there is usually little or no nonexempt property in most chapter 7 cases, there may not be an actual liquidation of the debtor’s assets. These cases are called “no-asset cases.” A creditor holding an unsecured claim will get a distribution from the bankruptcy estate only if the case is an asset case and the creditor files a proof of claim with the bankruptcy court. In most chapter 7 cases, if the debtor is an individual, he or she receives a discharge that releases him or her from personal liability for certain dischargeable debts. The debtor normally receives a discharge just a few months after the petition is filed. Amendments to the Bankruptcy Code enacted in to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 require the application of a “means test” to determine whether individual consumer debtors qualify for relief under chapter 7. If such a debtor’s income is in excess of certain thresholds, the debtor may not be eligible for chapter 7 relief.
Entitled Adjustment of Debts of an Individual with Regular Income, is designed for an individual debtor who has a regular source of income. Chapter 13 is often preferable to chapter 7 because it enables the debtor to keep a valuable asset, such as a house, and because it allows the debtor to propose a “plan” to repay creditors over time – usually three to five years. Chapter 13 is also used by consumer debtors who do not qualify for chapter 7 relief under the means test. At a confirmation hearing, the court either approves or disapproves the debtor’s repayment plan, depending on whether it meets the Bankruptcy Code’s requirements for confirmation. Chapter 13 is very different from chapter 7 since the chapter 13 debtor usually remains in possession of the property of the estate and makes payments to creditors, through the trustee, based on the debtor’s anticipated income over the life of the plan. Unlike chapter 7, the debtor does not receive an immediate discharge of debts. The debtor must complete the payments required under the plan before the discharge is received. The debtor is protected from lawsuits, garnishments, and other creditor actions while the plan is in effect. The discharge is also somewhat broader (i.e., more debts are eliminated) under chapter 13 than the discharge under chapter 7.
Having found a home you wish to buy, contact your lawyer before signing anything. Whatever it title may be, the written agreement between buyer and seller is binding on both and your bargain is made when it is signed. Therefore, your lawyer can assist you more before that agreement is signed than at any later time.
The agreement to purchase must cover at least these items: price, earnest money, the dollar amount and other conditions of the mortgage you will require, the kind of deed, dates for closing and for occupancy, items to be left with the house when seller moves, title exceptions, survey, taxes and insurance. Your attorney will be sure no important consideration is overlooked in the contract and will later attend the closing with you to be sure the contract is fully performed by the seller.
As the owner of a home you not only have a valuable asset but also new risks of loss and potential liabilities. Therefore, you will need to carry fire and extended coverage plus public liability insurance. Combined coverages, known as howeowners insurance policies, are commonly used. About 30 days before closing you should acquaint yourself with the available coverages and rates. You must have purchased you insurance prior to closing and your mortgage lender must be named as in insured.
In addition to the down payment another important cost of home ownership is the mortgage payment. That payment will include principal and interest on the amount borrowed and usually 1/12th of the anticipated real estate taxes and insurance premiums for the forthcoming year. Both you and any prospective mortgage lender must view the proposed purchase in light of your ability to make these payments.
Prior to closing, the seller must provide the purchaser with satisfactory evidence of good title as defined in the purchase agreement. This can be done by furnishing an owner’s title policy. Sometimes it is also done by giving an up to date abstract of title showing clear title. If there is a mortgage loan, the lender will want a lender’s title insurance policy. In many counties, it is customary for the seller to pay for the owner’s policy and the buyer to pay for the lender’s policy.
Now you are ready to close. For convenience, real estate transactions are usually closed at the office of the purchaser’s mortgage lender. At the closing the seller delivers the required documents of title. Your attorney will understand the purpose, importance and effect of each one and will check for any errors or omissions.
Condominium ownership is a form of general and special ownership in which individuals own a deed and share with other owners a common ownership of public areas. This means that each owner must pay taxes on a prorated basis and is responsible for upkeep of common areas. Most condos are organized as corporations and the corporations, through a board of directors, provide by-laws with which all owners must comply. Careful study should be given to such by-laws before agreeing to purchase a condominium.
Mortgages are extended in the same manner for a condominium as when buying a single family residence. As with home-ownership, there are distinct advantages and disadvantages to condominium ownership which should b weighed carefully.
Illinois law calls annulment a “declaration of invalidity of marriage.” It is a court order that says that a marriage is not valid, and should not be recognized by the state. An annulment is different from a divorce. A divorce says that a valid marriage is over.
A divorce means the marriage is legally over, and ex-spouses are free to marry others. The court can determine child custody, visitation, child support, spousal maintenance, and divide property.
A legal separation means the marriage is not legally over. Spouses are still married and cannot remarry. However, the court can determine child custody, visitation, child support and spousal maintenance. The court cannot divide property unless you and your spouse agree ask the court to divide property.
If you don’t think you can live with your spouse, you can file for legal separation. You can still get a divorce later.
An agreement will speed things up, but how fast a divorce goes depends on your local court schedule. With an agreement it is possible to go from filing to judgment in a day or two, but usually the fastest would be about two weeks.
An agreement can speed up a divorce by eliminating the need to deliver (called “service”) a copy of the divorce Petition on the other spouse and by eliminating the 30 day wait after service that is required before going to court. Without an agreement the sheriff must serve the divorce Petition on the other spouse, and you must then give them 30 days to file a written response. Only after that 30 days is up can you schedule a court date.
But, the other spouse can sign an Entry of Appearance that waives or avoids being served with a Summons and which consents to letting the divorce case proceed against them. The other spouse can also waive the 30 day wait between receiving the Petition and a court date.
With an Entry of Appearance, how fast your divorce goes depends on how fast your Circuit Clerk can schedule a court date on your divorce Petition. You should be able to get a court date within about two weeks of filing for divorce–possibly even sooner.
“Joint legal custody” means that after you are divorced, you and your spouse will make any major decisions about your children together. Usually, this will include decisions about your children’s religion, education and medical care. After you and your spouse agree to have joint legal custody, your agreement will be written down as a “joint parenting agreement.” This agreement lists the rules that you and your spouse will follow as parents of your children.
Joint legal custody has nothing to do with how much time each parent spends with the children. When there is joint legal custody, one parent has to be the “primary residential parent.” The address of the primary residential parent will be the child’s legal address for school.
Other than that, you and your spouse will need to decide on a parenting schedule that you both agree will be good for the children. For example, you can have joint legal custody of your children even if your spouse lives in another state and only spends time with your children in the summer and during school vacations. Your lawyers and the judge can help you with this, but you and your spouse know your children best, so you should try to figure out a schedule that is best for them.
You should probably not get joint legal custody unless you and your ex-spouse will be able to get along and make decisions together about your children. Couples going through divorces often fight about everything. Feelings are often hurt and one or both of the couple is often very angry at the other. The question of whether you should agree to joint legal custody requires you to look beyond the divorce itself. You and your ex-spouse could be parenting your children together forever (or at least until they are adults). Your lawyer can talk to you about whether joint legal custody might work for you and your spouse.
If you and your ex-spouse have a dispute, your parenting agreement should tell you what to do. Usually, the parenting agreement will say that you must meet with a trained mediator who will try to help you come to an agreement with your ex-spouse. If you still cannot agree, one of you will have to file a petition with the court so that the judge can decide.
Explain to the lawyer why you have made the appointment. After you have explained your problem, the lawyer will point out any laws or legal procedures that will be involved in handling the matter for you. You should ask a lawyer any questions you may have about your problem or the law relating to it.
During the first visit you should discuss with your lawyer what the fees will be. Many times the exact amount cannot be determined in advance, but the lawyer will at least explain to you how he or she plans to compute your fee, and may be able to give you an estimate of what the charges will be. You have the right to ask that the fee arrangement be put into a letter to you so that there will be no questions about the fees at some later time. Be sure to find out if the time spent in your initial consultation will be billed to you.
If your lawyer requests a deposit, sometimes called a “retainer” or “advance”, ask whether any part of it will be refunded to you if you do not proceed. The amount of the retainer will vary, but it should be a fair amount to cover the initial work and disbursements. On occasion, lawyers may refund an advance or retainer after reimbursing themselves for services actually performed, although traditionally, a “retainer” is considered nonrefundable.
If at some later time you have a question regarding your lawyer’s bill, ask him or her to explain the charges. Most lawyers today maintain detailed records of the time they spend working for each client. This usually serves as a basis for their fees. Questions and problems concerning fees can result because you may be unaware of the extent of the work a lawyer has actually done. Reaching an early agreement as to fees will lessen the chances of any future misunderstanding.
An attorney will charge you in one of three ways:
On a flat fee basis, for handling a particular type of matter.
On the basis of a percentage of recovery, which is called a contingent fee arrangement.
On an hourly basis.
Other factors that may enter into an attorney’s fees are as follows:
The nature of the problem or matter. A simple problem involving well-established procedures that are routine will cost less than a complex matter that raises a unique question or requires work in a specialized field of law.
The experience, skill and reputation of the lawyer. A lawyer with more experience and ability, who is known to have special skill in limited areas of the law, may charge more per hour than someone not as well known. This may not necessarily result in higher overall fees, if the lawyer can perform the services more efficiently than a less experienced lawyer.
Business expenses, office costs, such as secretaries, rent, telephone, postage, office supplies, law books and legal publications, are indispensable to your lawyer’s effective practice of law. Fees take into account the fact that the lawyer must recover the cost of these items.
Benefits derived from the services rendered. The responsibility assumed by the lawyer and the results may be an important factor in determining the fees.
Paralegals. Certain routine legal matters by a paralegal experienced in an area of the law but who is not a lawyer. You may be charged for work done by such a paralegal.
Most lawyers establish a fixed hourly charge for their services. A lawyer’s fee is computed by multiplying this fixed hourly charge by the number of hours a lawyer spent working for you. The lawyer then may add direct out-of-pocket expenses such as court filing costs, telephone charges, transportation costs, photocopy charges, legal research, costs of experts engaged in other professional fields.
When retaining an attorney on this basis, you may wish to ask for an estimate of the charges for the requested services, and to request an explanation of what complications might arise and what effect the complications will have on your fee.
Hourly rates of lawyers will depend upon the lawyer’s experience and the demand for his or her services. There is no set hourly rate, and the rates vary.
Remember that only part of the hourly fee is actually for the lawyer’s services – much of the fee goes to pay his or her business expenses as described above.
In some types of personal injury and damage cases, an attorney may agree to a contingent fee arrangement. In this situation, the fee is paid for the attorney’s services if, and only if, there is some financial recovery. If there is none, the attorney is not entitled to collect any fee, but the client must pay court costs and other expenses directly related to the case. Contingent fees will usually be a percentage of the recovery. If you have a matter for which such an arrangement might be appropriate, your lawyer will discuss the possibility with you when you talk about the fees during your first visit. Contingent fees will usually be substantially more than fees based on hourly rates yet are often attractive to the client because the fee is not payable unless there is a recovery. Contingent fee agreements should be in writing.
Your lawyer needs to know all the information you have about your legal matter to be able to help you in the best way, just like your doctor needs to know your complete medical history to be able to figure out what may be wrong with you medically. If you leave anything out, your lawyer may not get a correct and complete picture of the problem. The lawyer’s advice and assistance may be wrong or even harmful if it is based on incomplete or incorrect information. The other side will make every effort to know and understand all the facts, even ones you do not disclose. This can lead to your attorney being surprised by facts at a critical stage of your case. This is never good and can be avoided by telling your attorney the entire story, at the start.
Information you tell your lawyer is protected in two ways: the lawyer-client privilege and the lawyer’s duty to protect confidentiality.
The Lawyer-Client Privilege, also known as the “Attorney-Client Privilege,” means that you, the client, generally have control over what private information the lawyer can be required to give to others.
The lawyer’s duty of confidentiality is even broader. It means, generally, that the lawyer must take precautions to keep any confidential information from being disclosed to anyone without your consent. However, if you sign a waiver of confidentiality that means you are giving up the right to keep the information confidential, and the information can be given or told to someone else.
It is very important that your lawyer knows how to get in touch with you when he or she needs to. Even if you think your legal matter is not very urgent, your lawyer may find critical deadlines or due dates that require quick action. He or she may have a question for you or need more information to complete the legal assessment or services.
When you hire a lawyer, you will be asked for several means of contacting you. If any of these change, let your lawyer’s staff know immediately. It is best to send that information in writing or, if your lawyer allows email communications, by email. That helps you make sure the phone number or address information is correct.
It is important to let your lawyer or his or her staff know if anything happens or changes during the representation, as soon as possible. Some deadlines are very short, so give your lawyer the best chance to act on your behalf by letting the lawyer know if you are served with court papers, receive any communication related to your legal matter, have a change in your own circumstances, or find additional documents or information related to your legal matter that you forgot or were unable to give the lawyer earlier. In representing you, your lawyer’s best tools depend on complete and correct information. You give your lawyer the best chance of protecting your interests when you provide the most complete and correct information you can.
When your lawyer gives you instructions or other guidance, it is important that you follow those instructions carefully. Make sure you understand them. If you need the instructions in writing, ask the lawyer to write them down for you. Or, you can take thorough notes and review them with your lawyer to make sure you recorded the instructions correctly. Do not be embarrassed about asking questions. Lawyers sometimes use words that are not familiar to everyone. It is fine to ask the lawyer to communicate to you in a way you can better understand. Most lawyers are happy to help you understand them better.
Before you hire a particular lawyer, make sure you understand what the lawyer has agreed to do as well as what the lawyer is not going to do for you.
If you have questions about the services promised, ask.
If you want to know why the lawyer proposes to take or not take a particular action, ask.
If you are unclear about the basis for the lawyer’s fees or up-front fee deposit (often known as a “retainer”), ask.
If you need the work completed by a certain date, make sure the lawyer is able to meet that deadline.
You have a right to know and need to understand these things before you agree to them.
Be reasonable about what you expect from your lawyer. Unless you are ready to pay a lot of money for essentially all of the lawyer’s available time, you must recognize that lawyers have many clients at any given time, and each client will have different deadlines and different levels of urgency in their legal matters.
Unless you need to provide an update to the lawyer or the lawyer has not kept you reasonably informed about the status of your legal matter, do not interrupt the lawyer with frequent phone calls or emails to ask about how your case is going. If you have agreed to pay the lawyer by the hour, keep in mind that each phone call or email may add to your legal bill, so save those for important messages.
Lawyers have certain duties to their clients.
Lawyers must not neglect any of their clients’ legal matters.
Lawyers must complete the obligations they owe to their clients.
Lawyers must honor their clients’ decisions on how to handle the case, even if the lawyer disagrees, as long as the client’s decisions are legal and reasonable.
If the lawyer wants to limit the amount or type of work he or she does on a particular legal matter for a client, the lawyer must explain what those limits are and also get the client’s agreement on the limitations.
Perhaps the most important duty is that the lawyer must keep the client reasonably informed of the status of the legal matter. If you feel that a reasonable time has passed since you last heard from your lawyer or the lawyer’s staff, and especially if you know an important deadline or due date is approaching, you have the right to check with the lawyer to make sure he or she is working on your legal matter.
The relationship between landlord and tenant arises from an agreement called a lease by which one party occupies the real estate of another with the owner’s consent.
No particular words are necessary to create a lease, but generally the terms of a lease include a description of the real estate, the duration of the agreement, the rent, and the time of payment. In Illinois, a lease need not be in writing unless it is for a term greater than one year. Although the terms of an oral lease may be difficult to ascertain, a party may be bound t the terms on an oral agreement just as much as a written one.
The most common form of a lease is a written agreement which spells out all of the terms and conditions binding upon both parties.
If a lease is not in writing, it will probably be a periodic lease, which is one without a definite term. The period is generally determined by the frequency of the rental payments; for example: week to week, month to month, year to year.
If a lease is not for a specific term, it may be terminated by either party with proper notice.
a) For year-to-year tenancies, other than a lease of farmland, either party may terminate the lease by giving sixty days’ written notice at any time within the four months preceding the last sixty days of the lease.
b) A week-to-week tenancy may be terminated by either party by giving seven days’ written notice to the other party.
c) Farm leases generally run for one year. Customarily, they begin and end in March of each year. Notice to terminate must be given at least four months before the end of the term.
d) In all other lease agreements for a period of less than one year, a party must give thirty days’ written notice. Ay notice given should call for termination on the last day of the rental period.
When a lease is written, the expiration date is usually stated in the document. No termination notice is necessary in such a case.
The most common breach of a lease is non-payment of rent. In this case the landlord must serve a five day notice upon the delinquent tenant. Five days after such notice, the landlord may commence eviction proceedings against the tenant. If, however, the tenant pays the rent within those five days then the landlord may not proceed with an eviction. The landlord is not required, however, to accept rent that is less than the exact amount due. If the landlord accepts less than the full amount, any rights under prior notice would be ended. The notice itself does not end the lease but merely states that the landlord can consider the lease ended and bring a suit for possession.
If a landlord wishes to terminate a lease because of a violation of the lease agreement by the tenant, other than for non-payment of rent, he or she must serve ten days’ written notice upon the tenant before eviction proceedings can begin. Acceptance of rent after such notice is a waiver by the landlord of the right to terminate the lease unless the breach complained of is a continuing breach.
Notice may be served upon the tenant by delivering a written or printed copy to the tenant or by leaving the same with some person above the age of ten (10) years who lives at the party’s residence or by sending a copy of the notice to the party by certified or registered mail with a return receipt from the addressee. If no one is in the actual possession of the premises, then posting notice on the premises is sufficient.
Often printed leases prohibit the tenant from subletting the premises without the written consent of the landlord. Such consent cannot be withheld unreasonably, but the prohibition is enforceable under the law. If there is no such prohibition, then a tenant may sub-lease or assign his lease to another. In such cases, however, the tenant will remain responsible to the landlord unless the landlord releases the original tenant. A breach of the sub-lease will not change the initial relationship between the landlord and tenant.
If the landlord has breached the lease by failing to meet the duties as a landlord under the lease, certain remedies arise in favor of the tenant.
a) The tenant may sue the landlord for damages sustained as a result of the breach.
b) If a landlord fails to maintain a leased residence in a livable condition, the tenant may be able to vacate the premises and terminate the lease under the theory of “constructive eviction”.
c) Also, the failure of a landlord to comply substantially with local housing codes may be a breach of the landlord’s “implied warranty of habitability” (independent of any written lease provisions or oral promises) which the tenant may asset as a defense to an eviction based on the non-payment of rent. However, breach by landlord of local housing codes does not automatically entitle a tenant to withhold rent. The obligation to pay rent continues as long as the tenant remains in the leased premises and to asset this defense successfully, the tenant will have to show that his damages resulting from the landlord’s breach of this “implied warranty” equal or exceed the rent claimed due.
A landlord’s breach and tenant’s damages may be difficult to prove and because of the limited and technical nature of these rules tenants should be extremely cautious in withholding rent and should probably only do so after consulting an attorney.
If rent is not paid the landlord may (1) sue for the rent due or to become due in the future or (2) terminate the lease and collect any past rent due.
If a tenant fails to vacate leased premises at the end of the lease term, the tenant may become liable for double rent for the period of holdover. If the holdover is deemed to be willful. The tenant can also be evicted.
If the tenant damages the premises, the landlord may sue for the repair of such damages.
It is unlawful for a landlord to discriminate in the leasing of a dwelling house, flat or apartment against prospective tenants who have children under the age of 14 years.
Provisions in a lease agreement which exempt a landlord from liability for damages to persons or property caused by the negligence of the landlord are void as being against public policy and are therefore unenforceable. Under certain circumstances in the event of non-payment of rent the landlord may hold the furniture and personal property of the tenant until past rent is paid by the tenant.
A tenant is usually required to deposit with the landlord a sum of money prior to occupying the premises. This is usually referred to as a security deposit. This money is deemed to be security for any damages to the premises or non-payment of rent. The security deposit does not relieve the tenant of the duty to pay the last month’s rent. It must be returned to the tenant upon vacating the premises, if no damage has been done beyond normal wear and tear and the rent is fully paid.
If a landlord fails to return the security deposit promptly, the tenant can sue to recover that portion of the security deposit to which the tenant is entitled.
A landlord leasing residential real estate containing ten or more units who receives a security deposit may not withhold any part of that deposit as compensation for property damage unless he furnishes to the tenant, within thirty days of the date the tenant vacates, a statement of damages allegedly caused by the tenant and estimated or actual cost of repairing or replacing each item on that statement. If no such statement is furnished within 30 days, the landlord must return the security deposit in full within 45 days of the date the tenant vacated.
If a building contains 25 or more residential units, the landlord must also pay 5% interest on the deposit form the date it was paid, if held more than 6 months.
Landlord and tenant matters can become complex. Both landlord and tenant should consult an attorney for assistance with particular problems.
A Power of Attorney (POA) is a document in which one person gives another person the power to conduct certain actions on his or her behalf. Examples of situations in which a written POA could be useful include:
• A single woman whose mother has Alzheimer’s disease realizes she would need someone to make financial decisions if she develops the same condition.
• An adult with a cognitive or psychiatric disability who lives and works independently, but needs assistance with financial decisions.
• An elderly grandmother with macular degeneration wants her daughter to identify bills received in the mail and write checks for them because she can no longer see.
• A wife and husband who want to give each other authority to manage finances should either one should become incapacitated.
With a POA a person (principal) can designate another person (agent) to act on the principal’s behalf. The agent can sign legal documents when the principal is unavailable, when the principal prefers the convenience of having someone else sign, or when the principal becomes incapacitated.
Example A:Sara (principal), a home bound elderly mother who becomes agitated and stressed when confronted with financial decisions, wanted her daughter (agent) to have the authority to write checks to pay for groceries, medicine and other personal items for her. Sara signed a POA to give authority for her daughter to perform not only these types of actions, but also to make any other financial decisions for Sara in the future.
Example B:Jack (principal), an Illinois National Guardsman who has been deployed overseas, signed a POA that gives his wife (agent) authority to sell their home. He also authorized her to redeem a certificate of deposit titled solely in his name that will reach maturity while he is out of the country. Jack’s POA limits his wife’s actions to those two transactions only.
The principal decides what actions can be taken by the agent. The following is a common list    but the principal can subtract from and add to the list.
• Real property;
• Tangible personal property;
• Stocks and bonds;
• Commodities and options;
• Banks and other financial institutions;
• Operation of entity or business;
• Insurance and annuities;
• Estates, trusts, and other beneficial interests;
• Claims and litigation;
• Personal and family maintenance;
• Benefits from government programs, civil or military service;
• Retirement plans; and
A Power of Attorney for Health Care is a form which gives another person the power to make some health care decisions for you when you cannot make decisions for yourself.
You can choose who to give this power to. The person you choose is usually your spouse, a close friend, or a trusted relative.
This person is called your agent or “attorney in fact.” You can choose more than one agent, but only one agent can make decisions for you at any one time. If you do choose more than one agent, the first agent will make decisions for you until they are unable or unwilling to act on your behalf.
The law allows for the court appointment of a guardian of the person and/or the estate should an individual become incapacitated.
The appointment of a guardian is not automatic. A hearing must be held in circuit court that is attended by the person petitioning to be guardian and the petitioner’s attorney, the person alleged to be incapacitated and his or her attorney, and witnesses. In some families there are disagreements about who is the “most capable” and who would be the “best” guardian often resulting in lengthy and costly court proceedings.
In addition to being more costly than a POA, a guardianship proceeding is conducted in open court, not in private. The court process may result in delays when timely decisions are needed to help a person who has diminished capacity. The circuit court process also can be bewildering and stressful to a person whose ability to comprehend information is impaired.
Authority for decision making rests with the court-appointed guardian. With a POA, a person could limit the decision making authority of an agent, while retaining the ability to make other decisions. With a POA a person could also avoid the continuing expenses of an inventory and annual accounting and attorney’s fees.
A person qualifies for SSDI if:
they have a physical or mental condition that prevents them from engaging in any “substantial gainful activity” (“SGA”), and
the condition is expected to last at least 12 months or result in death, and
they are under the age of 65, and
generally, they have accumulated 20 social security credits in the last 10 years prior to the onset of disability (normally four credits per full or partial year); one additional credit is required for every year by which the worker’s age exceeds 42.
The work requirement is waived for applicants who can prove that they became disabled at or before the age of 22, as these individuals may be allowed to collect on their parent’s or parents’ work credits. The parent(s) experience no loss of benefits.
Medical evidence is signs, symptoms and laboratory findings and is required to document the claim. Symptoms, such as pain, are considered but must be reasonably expected to come from a medically determinable impairment which the claimant is diagnosed to have. the claim.
Medical evidence that demonstrates the applicant’s inability to work is required. SSA may require the applicant to visit a third-party physician for medical documentation, often to supplement the evidence treating sources do not supply. The applicant may meet a SSA medical listing for their condition. If their condition does not meet the requirements of a listing, their residual functional capacity is considered, along with their age, past relevant work, and education, in determining their ability to perform either their past work, or other work generally available in the national economy.
Residual functional capacity (RFC) is classified according to the five exertional levels of work defined in the Dictionary of Occupational Titles which are: Sedentary, Light, Medium, Heavy, and Very Heavy. If the residual functional capacity of an individual equals the previous work performed, the claim is denied on the basis that the individual can return to former work. If the residual functional capacity is less than former work then the RFC is applied against a vocational grid that considers the individual’s age, education and transferability of formerly learned and used skills. The vocational grid directs an allowance or denial of benefits.
Applicants may hire a lawyer to help them apply or appeal.
The fee that a representative can charge for SSDI representation is set by law. Currently, under the SSA’s fee agreement approval process, it is 25 percent of the retroactive dollar amount awarded, not to exceed $6,000. Some representatives may charge fees for costs related to the claim, such as photocopy and medical record collection expenses.
Generally, the person qualifying for benefits is determined to be capable of managing their own financial affairs, and the benefits are disbursed directly to them. In the case of persons who have a diagnosed mental impairment which interferes with their ability to manage their own finances, the Social Security Administration may require that the person assign someone to be their representative payee. This person will receive the benefits on behalf of the disabled individual, and disburse them directly to payers such as landlords, or to the disabled person, while providing money management assistance (help with purchasing items, limiting spending money, etc.). The representative payee often does not charge a fee for this service, especially if it’s a friend or relative. Social service agencies who are assigned as payee are NOT prohibited from charging a fee, although the maximum fee is set by Social Security. The fee is the same for ALL recipients, except it can be larger for those with severe substance abuse problems (Social Security determines when a higher fee can be charged, not the representative payee.) Some states and counties have representative payee agencies (also called substitute payee programs) which receive the benefits on behalf of the disabled person’s social worker, and disburse the benefits per the social worker’s instructions. A payee can be very helpful in the instance of homeless individuals who need assistance paying down debts (like utility bills) and saving for housing.
In order to receive SSI benefits, individuals must prove the following:
65 years of age or blind or disabled.
Legal resident.
Income below guidelines.
Have applied for the benefits.
Disability means inability to engage in any SGA [substantial gainful activity] by reason of any medically determinable physical or mental impairment which can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months.
Workers shall be determined to be under a disability only if the physical or mental impairment or impairments are of such severity that the individual is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. This is regardless of whether any of these are true:
Such work exists in the immediate area in which the claimant lives.
A specific job vacancy exists.
The claimant would be hired if they applied for work.
Work which exists in the national economy means work which exists in significant numbers either in the region where such individuals lives or in several regions of the country.”
Substantial gainful activity (SGA), for the year 2014, is the ability to earn $1070 gross income in a month’s period for most disabled individuals, and $1800 for those whose disability includes blindness.
Children under the age of 18 can be determined to be disabled for SSI purposes “if the individual has a medically determinable impairment or combination of impairments that causes marked or severe functional limitation(s), and can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months.”
Being blind means having a central visual acuity of 20/200 or less in the better eye with the use of a correcting lens. An eye which has a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees should also be considered as having a central visual acuity of 20/200 or less.”
In addition, for SSI purposes, an individual is considered blind regardless of the period of time they are expected to be blind or if they are performing substantial gainful activity.
One of the requirements to receive SSI is that the individual’s income must be below certain limits. These limits may vary based on the state in which the individual lives, his/her living arrangement, the number of people living in the residence, and the type of income. The limit varies on all of these factors and is described below, in the section on benefit computation.
Another requirement for SSI is that the individual’s resources be below a certain limit. This amount is $2,000 for a single individual and $3,000 for an individual and their spouse (whether the spouse is eligible for SSI or not), $4,000 for a child applicant with one parent living in the household, and $5,000 for a child applicant with two parents living in the household. However, conditional benefits may be paid if a substantial portion of the resources are considered non-liquid, resources that cannot be sold within 20 working days, if they agree to sell the resources at their current market value within a specified period and repay the money after the non-liquid property is sold.
However, not all actual resources are counted in calculating an individual’s or couple’s resources for SSI purposes.
May be ineligible if he or she is a resident of a public institution from the first day of a month through the last day of the same month, fails to apply for all other benefits for which they may be eligible (including Social Security benefits), has an unsatisfied warrant or violates parole conditions, fails to give SSA permission to contact any financial institution for financial records, or is outside the US for 30 consecutive days with some exceptions.
Generally, the person qualifying for benefits is determined to be capable of managing their own financial affairs, and the benefits may be disbursed directly to them. In the case of persons who have a diagnosed mental impairment which interferes with their ability to manage their own finances, the Social Security Administration may require that the person assign someone to be their representative payee. This person will receive the benefits on behalf of the disabled individual, and disburse them directly to payors such as landlords, or to the disabled person, while providing money management assistance (help with purchasing items, limiting spending money, etc.). The representative payee generally does not charge a fee for this service, especially if it’s a friend or relative. Social service agencies who are assigned as payee are prohibited from charging a fee, though some private payee agencies do provide the service for a small fee. Some states and counties have representative payee agencies (also called substitute payee programs) which receive the benefits on behalf of the disabled person’s social worker, and disburse the benefits per the social worker’s instructions.
 Probate is the legal procedure in court whereby the property of a person who has died is
transferred to the people who survive either under a will or through a statutory formula developed by the legislature. Not all estates require probate action and probate is not dependent upon the existence of a will. It can even occur when there is a living trust.
However, the only property that passes through probate is that property which the decedent owned in his/her own name at the time of death. Property that is not held solely by the decedent at the time of death does not pass through probate, but passes in other ways which will be outlined below.
Following are some of the benefits of probate:
A probate judge will determine how the property is to be divided, based on the decedent’s will or the statutory formula if there is no will.
There will be no misunderstandings or questions regarding the desires of the decedent. There will be a court order entered, which must be followed by the survivors.
Creditors have a limited time to collect debts owed by the decedent’s estate. In order to get paid they have to file claims within six months of notice published in the local newspaper. If they do not file their claims within that period, they cannot collect from the heirs or legatees.
The easiest way to avoid having your estate probated is to not own anything when you die.
Sometimes your children may suggest that you transfer ownership of your real estate, bank accounts, and other assets for exactly this purpose.
While this will avoid probate, there are many distinct disadvantages to giving away everything you own. Most obviously, you cannot use what you do not own.
If you give your bank accounts to your children, you may not have use of the money, except as they allow.
If you transfer your real estate to someone else, they can sell it out from under you. While you may not think that your loved ones will do this, it does happen.
What also happens is that the creditors of your relatives can assert a claim against property that you have transferred to your loved ones, and they may lose the property through legal procedures.
Moreover, there may be certain tax advantages to retaining ownership of real estate that
are not achieved if you transfer ownership to your children or other persons without retaining some legal interest in the property.
As a general rule it is a bad idea to transfer ownership of things you own to anyone else unless
you are absolutely certain that you will not need or want to use that property for the rest of your life.
Increasingly, older people are remarrying late in life and may have a dramatic change of living
While today you may not think that you will want to move or use your funds for travel, you may
change your mind based on unforeseen events.
Additionally, transferring your property to someone else may have unintended implications if
you need to apply for medical assistance to assist you in paying your medical bills. This is a particular problem if Medicaid is necessary to pay for long term care in a nursing home.
The most common way of avoiding probate is to hold property in joint tenancy.
This means that you and some other person have joint ownership of the property, and at the death of one of you the other automatically acquires complete ownership without the necessity of going through probate in court. It is quite common for a husband and wife to own their home and bank accounts in joint tenancy. Thus, when the first spouse dies the other one immediately becomes owner without the necessity of a probate procedure. For this reason,
it is often possible to avoid doing a probate of the estate of the first spouse to die.
Sometimes people put the names of their children on bank accounts or other property as joint
tenants. While this will avoid probate, it also creates some problems. Here too, the creditors of your children can assert a claim against the property that you hold jointly with them. While you might not think that your children have any creditors, the unfortunate fact is that business reversals or liability arising from automobile accidents can subject your children to unanticipated liability of thousands of dollars. If this happens, property you have transferred into joint tenancy with your children can be reached by your children’s creditors. Similarly, if any of your children should be required to pay spouse or child support and not have adequate resources to do so, the property could be reached to pay maintenance and child support.
Real estate held in joint tenancy cannot be transferred unless all of the joint tenants agree. This means that if you transfer your home into joint tenancy with your children, you all must agree before you can sell or mortgage the house in the future. This is an important consideration because you don’t know your future needs or desires. Also, one unreasonable child can cause very substantial hardships to the family by refusing to agree, thus precluding the sale or mortgage of the property or necessitating complex and expensive legal procedures to divide the property.
Bank accounts held in joint tenancy can be reached by each of the joint tenants independently, generally without the consent or knowledge of the other. What this means is that if you place your child’s name on a bank account in joint tenancy with you, your child will be able to withdraw it and keep it. While you can sue to get your money back, it’s difficult to win such a case, and in any case most people don’t sue their children.
In Illinois one way of avoiding joint tenancy problems is to hold bank accounts and certificates of deposit in “Payable on Death” (POD) accounts.
POD accounts allow you to retain complete control and ownership of your money while you are living, but immediately transfer ownership of the funds at your death.
Someone named as the beneficiary of a POD account has no present ownership rights to the account. It can’t be used to allow someone to pay your bills while you are still alive.
A living trust is a legal instrument whereby you transfer present ownership of your property to a trustee who holds the property for your benefit. The trustee may be a loved one, a bank or a savings institution, or even you.
The trustee, during your lifetime, utilizes your property for your benefit. If you become disabled, the trust instrument will provide that the trustee will spend your money for your benefit. At your death, the trustee is directed to dispose of the property as you desire, in much the same way as you would in a will. In most cases, the individual who sets up the trust will be the trustee himself/herself, and provisions will be included in the trust document to provide for successor trustees in the event of your disability or death.
Unlike a will, a living trust is not self-executing and requires that you transfer ownership for all items of property during your lifetime from yourself to the trustee, even if you are going to act as the trustee. This means that you must deed all of your property to the trustee, change all of your bank accounts, and get a stock broker to change ownership of all the stocks and bonds that you own. Many people do not understand that you must actually transfer ownership of the property in order for the living trust to be effective. Having a lawyer draft the trust document and signing it does not have any effect whatsoever unless and until you transfer property into the trust.
There are several advantages to a living trust. Most obviously, a living trust will avoid probate in most situations. Since the property held in trust at your death is not technically owned by you, the trust assets are not subject to disposition through the probate process in court. On the other hand, it s literally impossible to transfer all of your property into the trust. For example, personal property, including an automobile, may not be part of the trust. While most of such personal property can be transferred through relatively simple probate procedures, it is unusual to have an estate which is literally all in the trust.
The other advantage of a living trust is that it provides for your care if you become disabled.
This should be done in conjunction with a Durable Power of Attorney for Health care to assure that you are provided for in the event of disability.
A living trust has no tax benefits for income tax or death taxes. Sometimes, the trust will be a separate taxpayer for IRS purposes and may require payment of additional taxes.
Other estate planning advantages may also be lost.
If you are not the trustee, a fiduciary income tax return will have to be filed with the IRS. If the
trustee is someone other than you, the creation of the trust may mean that you will lose certain tax advantages for owner occupied and homestead real estate.
If you fail to transfer any of your property into the trust, such property will not pass as you
have indicated in the trust document. In fact, the property may be inherited by someone entirely different than that indicated in your trust. If you pay a private attorney to prepare the trust for you, you will find that this is a much more expensive type of legal service than the writing of a simple will. In fact, the cost of legal fees for a living trust may actually be as great as the cost of doing a simple probate. When the yearly costs of maintaining the trust, filing fiduciary tax returns, etc. are taken into consideration, the life-time costs for a living trust
generally will far exceed the cost of a will and a moderately complex probate procedure.
Sometimes, if you are not acting as your own trustee, there may be difficulty in getting property out of the trust if you need it. While the trustee is generally obligated to use property for your benefit, there can sometimes be differences of opinion about what exactly is in your benefit.
A trustee can seek and obtain a fee for services which will be paid out of your assets.
If you own no real estate (other than in joint tenancy), have an estate whose total value is $100,000 or less, and have no debts, no in-court probate is required to transfer property at your death. Rather, property can pass upon the execution of a signed affidavit. These Small Estate Affidavits can be done quickly.
If the estate has a value of $100,000 or less (even with real estate) a summary administration can be done quickly with relatively little judicial process.
An arrest is the taking, seizing or detaining of an individual by touching or putting hands on a person or taking action that indicates an intention to take the individual into custody and subjects him or her to the control and will of the person making the arrest.
When you are lawfully arrested your person and the immediate area of your place of arrest may be searched. If you are arrested in your home, the police may also conduct a limited search for persons outside the immediate area of the arrest.
An arrest warrant is a written order by a judge commanding the police to arrest the person named in the warrant.
If you are arrested pursuant to a warrant, the police must tell you that they are acting under authority of the warrant and show the warrant to you at the time of the arrest or promptly thereafter.
Police officers seeking to arrest you in your home must reveal their purpose and authority, unless they believe that with notification you will attempt to escape, destroy evidence or cause them harm.
You can be arrested without a warrant if the police have reasonable grounds to believe:
That a warrant for your arrest has been issued in this state or another jurisdiction.
You committed or attempted to commit a crime in the presence of the officer.
The officer has reasonable ground to believe both that a crime has been committed and that you are the person who committed it.
You can also be arrested without a warrant for traffic violations, including: driving or attempting to drive while intoxicated or under the influence of alcohol or drugs; failing to stop or give information in the event of an accident causing death, bodily injury or property damage; driving or attempting to drive on a suspended or revoked license; fleeing or attempting to elude police officers; or when the police reasonably believe you will disregard a traffic citation.
A private citizen may make an arrest under certain circumstances. The law permits a citizen to detain, or place under arrest a person who commits or attempts to commit a criminal offense in his presence other than an ordinance violation. All the person making the arrest has to do is prevent the accused from leaving. He may take the person by the arm and say something like, “Stop. I’m holding you for the police.”
The law permits police officers to approach you in a public place to request information. You need not submit to questioning and are free to walk away.
If the police reasonably suspect that you are committing, have committed or are about to commit a crime, they may briefly detain you for questioning. Under these circumstances, the officers may request your identification and an explanation for your actions. You are not required to answer. You may be frisked for weapons during the detention if the police officers reasonably suspect that you are armed and dangerous. If while frisking you for weapons, they find anything illegal, it may be confiscated and you can be arrested.
A warrant is not required for a pat-down frisk when the officers reasonably suspect that you are armed. A search without a warrant is also proper when contraband is in the officers’ plain view or the officers are making a lawful arrest.
A search warrant is a written order by a judge directing the police to search a certain place or person for specified property and to seize the property. The warrant must describe the person or place to be searched and the property to be seized. In most instances, anything unlawfully taken by police officers cannot be used as evidence against you. However, if the officers have reasonably relied on a warrant which is later declared invalid or if the officers would have discovered the evidence through other means, the evidence may be used against you.
If you are taken into police custody, you have the right to: be informed of the charges against you and the allowable penalties; obtain a lawyer, including the right to have one appointed if you cannot afford one; have a judge decide whether you should be released from jail until your trial; and remain silent.
The police may ask your name, address, and other routine processing questions. Before questioning you about anything else, the police must tell you that you have a right to remain silent; that any statement you make may be used as evidence against you; and that you have a right to speak with a lawyer and, if you wish, to have a lawyer present when you are being questioned. The police must also tell you that a lawyer will be assigned to your case without cost if you cannot afford a lawyer but want to speak to one before questioned. The questioning must stop if you state that you wish to remain silent or request a lawyer.
You silence cannot be used against you. However, what you say, as well as what you write or sign, can be used against you. Unless you actually requested a lawyer, the police may later ask you to speak with them. If you have requested a lawyer instead of merely refusing to answer questions, the police cannot question you further unless you later decide to talk without the benefit of legal counsel.

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