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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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Creating an estate plan is an important and challenging decision for all families. Often, one of the biggest initial obstacles is discussing your own death or the death of a family member. Estate planning is complex and very emotional. Therefore, it’s helpful to understand basics of the estate planning process before approaching a professional.

There are a number of life events that are important times to create or update an estate plan for your family or business. While the timing is different for every person, one should consider what could happen in the event of a substantial life change. These life events include:

  • Getting married.
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It was recently National Love Your Pet Day, and although you might think of your pet as family, under the law, pets are regarded as property – so although you can’t leave them money in your will, there are other ways you can make sure they are protected in the event of your passing.

You may have heard stories of people who left their entire fortune to their dog, but that isn’t exactly how it works. You can leave all your money to ensure your pet will be taken care of after your death, but it needs to be done in a certain way.

Because pets are considered property, you won’t be able to name them as a normal benefactor in your will, says Peter Elikann, Boston 25 legal analyst.

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Let’s say a married couple indicates in their estate plan that on the first of their deaths, the predeceasing spouse’s assets will be held in a trust. During the surviving spouse’s lifetime, they are the beneficiary and trustee of the trust, and once the surviving spouse passes away, the remaining trust assets will then be passed along to the couple’s children. Under prior Illinois law, the surviving spouse was not required to give notice or accounting to the children during that spouse’s lifetime. Many surviving spouses would have responded to the children’s questions about the trust with something along the lines of, “It’s none of your business.” However, on Jan. 1, 2020, that changed.

The Illinois Trust Code

Beginning Jan. 1, 2020, the new Illinois Trust Code (ITC) replaced the previous Illinois Trusts and Trustees Act. Among the changes, the most important involve the rights of remainder beneficiaries to notices and accountings – but it also gives proactive clients new tools to customize trusts and modify or avoid some of the new notice and accounting requirements.

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Most people don’t want to think about estate planning because they don’t want to think about their own death. Unfortunately, it’s much worse to not prepare for when you’re gone. Because it can be so hard to think about, people tend to want to rush through it as quickly as possible, doing things such as using an online program and answering a few questions and then calling it done. Unless you have a very simple estate and maybe just a single beneficiary, it’s best to not take the path of least resistance. The reality is that estate planning often becomes complicated. There are a lot of things to consider in your estate plan – here is a list of many that might apply to you:

1. The documents that you need

A. Starting with the basics, you need a will to help pass along your belongings and nonretirement assets. Retirement accounts and life insurance both have named beneficiaries and don’t go through your will, so if you change your will, it does not change these beneficiaries on retirement and insurance policies.

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The elimination of the Stretch IRA as part of the Setting Every Community Up for Retirement Enhancement (Secure) Act is going to create big changes for wealth advisors, estate planners, and parents planning to leave behind savings in individual retirement accounts for their kids.

“For a lot of people, the bulk of their wealth has been established in their IRAs,” said Michael Repak, vice president and senior estate planner with Janney Montgomery Scott.

The Secure Act is the most comprehensive retirement bill to pass in a decade and a half, and much of it is designed to stimulate more and better options in the workplace defined contribution market.

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An important new federal law went into effect January 1, 2020 called the SECURE Act (Setting Every Community Up For Retirement Enhancement). This law will change retirement savings and estate planning options for many people. Here are a few of the changes this act puts into place that may have the greatest impact on you and your estate plan.

The SECURE Act raises the age at which individuals must begin taking required minimum distributions from their IRA, 401K, 403B, and other qualified funds from age 70 ½ up to age 72 (an exception being if you turned 70 ½ prior to Dec. 31, 2019, in which case the new rule does not apply to you and you will need to start taking distributions by April 2020 or face penalties). The new law also does away with the 70 ½ age cap on contributing to an IRA. Now you can contribute income to an IRA no matter your age.

The most significant impact the SECURE Act has on estate planning concerns the IRA Stretchout. Before this act, individuals who did not need their IRA money could pass the IRA to non-spouse beneficiaries who could then “stretch out” withdrawals based on their life expectancies. Clients could use this to create a lifetime income stream for their children. However, this can no longer be done under the new law. Instead, non-spouse beneficiaries have to withdraw all funds from an inherited qualified plan within 10 years of the death of the original owner (although there are a few exceptions, such as if the non-spouse beneficiary is disabled.) There doesn’t need to be a set withdrawal schedule – the account just has to be depleted within 10 years. Those most impacted by the income tax consequences will be non-spouse beneficiaries in their peak earning years.

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