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Preparing a will and estate plan is a normal process for those who wish for their assets to be protected. Things such as a home, car, family heirlooms, art, stocks, or other items will pass to surviving loved ones intended by the deceased as instructed in a will. Dying without preparing a will, then, leaves the distribution of your assets outside of your control and will also take more time, money, and more of a stressful toll on your loved ones.

Mitch Adel, managing partner at Cooper Adel Vu in Centerberg, Sidney and Chillicothe; Steve Gariepy, partner and chair of the estate planning group at Hahn Loeser & Parks LLP in Cleveland; and Beatrice K. Sowald, partner at Sowald, Sowald, Anderson, Hawley & Johnson in Columbus, share about the difficulties faced when an individual dies without having properly prepared a will.

“The first thing is the family should confirm there is no will,” Gariepy said. “Ask around and just be doubly sure of that. After that, we have what is called intestacy laws, which cover dying without a will. They kick in and dictate who the beneficiaries and administrator of the estate are.”

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As the COVID-19 pandemic continues, many are worried about their health and are putting more thought toward whether their financial and legal affairs are in order in the event of serious illness or death. Pandemic or not, it is always recommended that every person have an estate plan in place, including at least four primary documents:

  • A will
  • A medical power of attorney
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When it comes to trusts and their potential benefits, a lot of people assume trusts are for “others” and don’t realize they may be ideal candidates for a trust that could help to protect their assets and avoid probate. Here are some of the most common misconceptions regarding trusts:

“I don’t want to lose control of my assets. Doesn’t someone else control the Trust?”

– Answer: Not necessarily. When setting up a Revocable or Irrevocable Trust, you can be the Trustee (the person who manages the trust). You can also choose other Co-Trustees, such as your spouse, child, or someone else you trust. You also choose who your successor trustees will be, and these people will take over the trust if you become incapacitated and after you pass away.

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Over half of all Americans give money to charity, but many have not been able to take a tax deduction since a 2017 change in the tax laws. However, with the new CARES Act, most American taxpayers will be able to take a tax deduction for charitable giving again. The details are as follows:

Section 2204 of the CARES Act allows eligible individual taxpayers to deduct up to $300 of qualified charitable contributions made during the taxable year.

Only cash donations qualify, so donations such as clothing, stocks, automobiles, or other items cannot be counted toward this. This is also only for taxpayers who take the standard deduction, as the majority do. Those who itemize their deductions cannot take this new $300 deduction.

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A provision in a recent coronavirus relief package prevents states from terminating Medicaid benefits during the pandemic.

The Families First Coronavirus Response Act (“CV Response Act”) was signed into law on March 18, 2020 and prevents states from terminating any Medicaid recipients who were enrolled in Medicaid on or after March 18, 2020, including in circumstances where there is a change that would normally cause their coverage to be terminated. Medicaid coverage for all recipients must continue through the end of the month during which the public health emergency declared by the Secretary of Health and Human Services for COVID-19 ends.

The state must make a good faith effort to contact recipients whose Medicaid benefits were terminated after March 18, 2020 and encourage him or her to reenroll. States are, however, able to terminate coverage for people who request to be terminated or who are no longer residents of that state.

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A 30-year-old patient with COVID-19 who was on a ventilator passed away last week. He hadn’t laid out his end-of-life wishes (referred to as advance directives). After seeing the numbers related to his son’s condition, his father was devastated and felt that further treatment was only painfully prolonging the inevitable. His mother wanted to try everything possible to save him. If the patient himself was able to speak, he could have expressed what his wishes were and saved his family from this heart-breaking conflict.

But he hadn’t planned to die.

This tragic situation is too common as families often fail to discuss emergencies and end-of-life wishes ahead of time. It’s even more stressful to make this kind of decision when the stakes are high, as they often are now amid the coronavirus pandemic. This is why it’s so important to learn about and make end-of-life treatment choices before a crisis occurs. None of us want to imagine the worst, but the worst is a callous reality.

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Although the coronavirus pandemic began only concentrated in large cities, there are cases now in all states both in cities as well as more rural areas. More and more people are considering what they want to do if they become infected, including thinking about estate planning.

“You start asking yourself, what happens if I become sick?” Jack Garniewski, president of the National Association of Estate Planners and Councils says. “Do I have the proper legal documents in place so that someone would be able to make decisions for me financially and from a medical standpoint?”

Garniewski says that more Americans are now making sure they have a durable power of attorney, which gives another person the power to make financial decisions for them if they become incapacitated. Many people are also planning how they want their property to be transferred if something happens to them.

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During the COVID-19 pandemic, many of us in Illinois are complying with the governor’s stay-at-home order. We are hunkered down in our homes – making only necessary trips for essential matters such as medical treatment, supplies, or perhaps taking a walk to breathe in in some fresh air and soak in some sunshine while maintaining social distancing. We thank and applaud everyone who is doing their part in curbing the spread of this virus.

At this time, some of you may reflect on the “what ifs” of the future. What will happen if you become incapacitated, or worse, if you pass? What if your child has special needs and you wish to preserve assets for the benefit of your child? What if you have minor children? How or who will take care of them and assets for their benefit should you be unable to care for them, or worse, die? Are you able to make or coordinate health care and financial decisions for your spouse, parent or other elder loved one?

Illinois law provides defaults for distributions through probate court proceedings if you were to pass away and a legal process (namely, guardianship) should you become incapacitated. Depending on Illinois law could involve what could be costly court proceedings. Ultimately, the result of the Illinois laws may not reflect your wishes as to the disposition of your assets and/or who will be in charge. A properly executed estate plan sets out your wishes and names the trusted persons you want in charge of your affairs during life and afterward. Estate plan documents can and often include wills, powers of attorney, living wills, and trust documents – such as living trusts, special needs trusts, or asset protection trusts.

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The Center for Disease Control and Prevention (“CDC”) and the Illinois Department of Health (“IDPH”) have set guidelines for healthcare facilities, including nursing homes, and other long-term care facilities amidst the current COVID-19 pandemic we are experiencing. These guidelines include visitor restrictions for the facilities. In a nutshell, if you are not considered an essential healthcare employee or a compassionate care visitor for end of life situations, you are not going to get near one of these facilities until…well we are not sure.

These guidelines have been put in place for the safety of the residents and employees, and understandably so. On the other hand, this guidance is missing clarity. The states (including Illinois) and, in-turn, the facilities are left to interpret what the definition of an essential healthcare employee and a compassionate care visitor means. Is a third-party caregiver an essential healthcare employee? Is being placed in hospice, in and of itself, considered an end of life situation? Based on experience over the past few weeks, the answer is no. It should be noted, though, that there is no real legal authority stating such. We are facing a time where loved ones could pass away alone because a facility did not interpret the guidelines to allow a visitor in such a situation. Seeking the courts guidance on the matter may be necessary. Until then, the facilities are given the freedom and flexibility to interpret the guidelines as they see fit.

What can you do until then? Often times, loved ones of the residents of nursing homes and long-term care facilities provide care, love, and encouragement to them. During this time, more than ever, this encouragement and love is essential to the resident’s well-being. If you have a loved one in a facility, what can you do during this critical time? Technology has allowed us to connect with people in ways we never could before. Calling and video chatting with loved ones can provide them with the emotional support they need. Just the sound of a loved one’s voice can bring a smile to a resident’s face.  Online games can be played together as well. While we are getting back to the basics during this time, writing a good old fashioned letter is a great option as well.

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The stock market has been in a free fall, and Americans are experiencing a type of fear that hasn’t been seen since the polio epidemic in the 1940s and 1950s.

During those decades, polio outbreaks in the U.S. crippled more than 35,000 people yearly, on average. Parents were afraid to let their children go outside, travel and commerce were restricted, and homes and towns where polio cases were found needed to be quarantined. Similar fears are resurfacing for many people now, and estate planning attorneys are being asked many questions.

“Suddenly business owners — from mom and pop shops to CEOs of large corporations — are meeting with estate planning lawyers like no other time than I can recall,” says Bakersfield, California, estate lawyer Patrick Jennison. “Appointment books are getting filled.”

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