By: Cynthia Hutchins and Kelly Hutchins
Organ donation is a very personal decision—there is no right or wrong decision—only the decision that is right for you. According to organ donation statistics on https://www.organdonor.gov, one-third of people who support organ donation do not have that choice documented. If you do not have your choice properly documented, it will impact your ability to make a donation upon your death.
There is no age limit on organ or tissue donation. In fact, about one-third of lifesaving organs come from people over the age of 50. One of the oldest organ donors was a 92-year-old man whose donated liver saved the life of a 69-year-old woman. Most major lifesaving organs come from living donors and trauma victims, which can happen at any age. The health of a donor and the manner of death is more important than age when it comes to donating vital organs.
Organizing important paperwork is the first step towards getting your affairs in order. I pride myself on being organized, and I want to pass on some of the wisdom I have acquired during my many years of practicing law. It may seem like a daunting task to get your affairs in order and papers organized, but if you follow these simple steps you will find the process can be easy and pain-free. Here are ten steps you may consider for organizing your important papers and make sure everything goes smoothly if something happens to you:
1—Find all of your original estate planning documents (Wills, Powers of Attorney, Living Wills, Trusts, Life Insurance Policies) and make a listing of those documents. On the list make a note of where you keep your originals and where you keep your copies.
All our lives have been significantly impacted by the COVID-19 pandemic. For many of us, it has put us in touch with our own mortality, and we realize how a serious illness or death can affect our loved ones, even beyond the tremendous emotional toll. Who do we want to make our healthcare decisions if we are incapacitated? What are our wishes for end of life care? How do we want our estates distributed after our deaths?
Making sure our documents and estate plans are in order may be one way to lessen the stress of this difficult time. Practicing law during this pandemic has brought its own challenges. Fortunately, modern technology allows us to continue to work with clients in writing, over the phone, and by video conference calls. Certainly, such communication methods do not replace the comfortable setting of in-person meetings. However, creative solutions to the practice of law make working remotely more successful.
With taxpayers owing such a high percentage of taxes on almost any type of long-term gain, in addition to other taxes –such as the Medicare surtax – those in the top tax brackets might consider establishing charitable remainder trusts for donations of highly-appreciated assets. A charitable trust is a trust established for some charitable purpose. Charitable trusts are limited in what they can do; they must fit into a certain category established by the law.
In order to establish a charitable trust, you must first create the trust and donate the property to the trust that will eventually pass to a charity that is approved by the IRS. The trustee will manage or invest the property to produce an income. A charitable trust can pay the person who established the trust a certain percentage of the income that was made from the trust over an agreed upon payment timeline. After the person that established the trust passes away, the charity becomes the owner of the property.
In 2010, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 into law. As part of this law, significant modifications were made to the rules governing federal estate taxes, gift taxes, and generation skipping transfer taxes. Additionally, the law also introduced the concept of "portability" of the federal estate tax exemption between married couples for the 2011 and 2012 tax years. Additionally, last year, President Obama signed the American Taxpayer Relief Act into law. Under the provisions of that law, portability of the estate tax exemption between married couples was made permanent.
Defining Portability
Portability is a valuable addition to estate tax laws because it allows a surviving spouse to use any unused federal estate tax exemption of the predeceased spouse. Portability may allow some couples to pass significant wealth without complicated estate tax planning.
A recent Hollywood-like story out of Munich is setting the stage for some interesting issues regarding estate planning and the rights of heirs. In a raid on the home of Cornelius Gurlitt in Germany, the police found over 1,000 paintings, drawings, and other works of art packed alongside hoarded groceries. Among the art discovered were works by Beckman, Picasso, Matisse, and Renoir – all taken from Jewish collectors in Nazi Germany. According to an article from the Chicago Tribune, the art stashed away in Gurlitt’s house could be worth over $1 billion.
The Nazi Regime and “Degenerate Art”
The art found in Gurlitt’s home was previously possessed by Gurlitt’s father, who helped Adolf Hitler sell art that had been stolen or quickly sold off by Jewish collectors throughout Europe. The Nazis categorized many great works of art as ‘degenerate’ and sold them on the open art market to provide additional wartime funding. Despite human rights organizations and Jewish groups around the world calling on Gurlitt to unconditionally return the art to their rightful owners, the German newspaper Der Spiegel reported that he has no plans of returning the artwork to those who owned the pieces sixty years ago. Instead, Gurlitt said, he plans on spending his life with the paintings.
Legal Issues
How is it that Gurlitt is allowed to keep art stolen by Nazis? Due to the sheer enormity of the find by German police officers, there is no legal precedent for what to do with all of the art. While many believe that the art should simply be returned to those who lost it during World War II, the solution is not that simple. First, a statute of limitations may exist barring collectors who lost their work from making claims against Gurlitt. A statute of limitations is a legally prescribed time limit in which a lawsuit may be filed in court. Second, some are already claiming that Gurlitt owns the art through adverse possession. Adverse possession is a way in which someone else may acquire ownership of property so long as a number of requirements are met, including ‘openly’ using the property so that the true owner is put on notice.
While in the U.S. the doctrine of adverse possession primarily applies to real estate, in Germany it can apply to art as well. Hence, even if someone who lived under Nazi rule could show that they had lost their property to Hitler’s regime, after decades of the art being in someone else’s possession, any claims for restitution may be barred.
Sometimes the law regarding property ownership and the rights of heirs can be complicated, even nonsensical. It is therefore important that you make sure all of your assets are accounted for and your estate is planned. If you have any questions regarding your estate, contact an experienced Illinois estate planning attorney today.
According to the Special Needs Alliance, approximately 57 million adults in this country suffer from some form of a diagnosable mental illness. Excluding those illnesses caused entirely by substance abuse, almost 5 percent of those 57 million suffer from a serious mental disorder that causes substantial interference with daily and major life activities. Some of the disorders included in this list are schizophrenia, bipolar disorder, depression, manic depressive and dementia.
Typically, adults who suffer from these serious illnesses or other special needs disorders are unable to sustain consistent employment, and they receive government financial aid to cover their medical needs and other living expenses.
When parents of special needs children set up their estate plan, careful attention needs to be paid to all aspects of how these plans will affect their children once the parents have died. An error or oversight could have serious consequences and cause the child to lose thier government aid.
There are many assets such as bank accounts, brokerage accounts, insurance policies, annuities and retirement funds that allow a beneficiary to be named on the account. In the event of the account owner’s death, those funds go directly to the person named, avoiding a lengthy probate waiting period. An article in the Wall Street Journal highlighted the importance of keeping accurate and up-to-date documentation of those who have been named as beneficiaries and the serious issues that can arise if beneficiaries are not updates.
For example, it is important to remember that despite who is designated in a will, it’s the person named as the beneficiary on the account, policy, etc., who will receive the funds. It’s all too common for people to forget the beneficiary they named on as beneficiary on accounts opened years ago. Your will may be written so that your entire estate is left to one person, but if someone different is named as beneficiary on your bank accounts,the beneficiary on the accounts will receive the funds, not the person named in your will.
End-of-life preparations are not easy, even when an experienced estate planning attorney is involved. Things become even more complicated when one makes said preparations later in life. In these cases, the probability of disputes from the beneficiaries increases because of the suspicion that elderly people are prone to undue influence.
Thus, litigation may follow whenever a person makes drastic changes to their will shortly before dying, especially when they disinherit family members for the benefit of non-family members.
Even high-worth individuals may encounter difficulties with their estate plans. Take the case of the copper mining heiress Hugguette Clark, who left behind an estate worth nearly $300 million.
Estate planning is important for determining the distribution of assets after death. However, property distribution after death can become a contentious issue that creates deep schisms in the family and can lead lengthy litigation. Fortunately, proper planning can avoid these issues.
Take the case the hypothetical of Jim and Ann. Jim and Ann spent most of their lives married to one another. They had three children who are now adults.
Eventually, Jim and Ann got a divorce and lived separately. As Jim became older, he required around-the-clock care by an experienced nurse. As time passed, Jim and the nurse grew closer, with Jim eventually asking the nurse to marry him. Only a few months after the marriage, Jim passed away from a long illness. To his family’s surprise, Jim’s attorney revealed that Jim had revoked his old will and had intended to execute a new one; however, he passed away before doing so. Jim’s estate planning attorney also revealed that Jim left an estate worth $4 million.
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