20 estate planning tips

After practicing for over 48 years, there are a number of practical tips that I could relay to other attorneys who practice or will practice in Estate Planning as follows:

1. Blue Ink/Pen/Elderly

Have your clients sign in blue ink so judges and attorneys know which are the originals. Use the same blue ink pens in case the first runs out of ink, then a second in the same color ink and the document will not look like it has been tampered with.

Have your client initial the pages. Have a magnifier available for those who have trouble seeing. Also, offer a “signature guide,” which is a plastic/cardboard form with an empty line down the middle so the client can sign in such space if he/she has trouble seeing.

Always test for competency or get a doctor’s letter if such is questionable, and test with all others out of the room.

2. Disinheritance

Always mention an heir who is disinherited in a will or trust so that he/she is not forgotten.

Do not leave said heir a small amount, i.e. $1, etc. because the executor/trustee will never get a receipt.

If a disproportional amount is left to a legatee, make sure you have a no contest clause, but most important that the said legatee will pay legal fees if he/she contests.

3. Joint Trust (Husband & Wife)

If a husband/wife joint trust is made, be sure to obtain a conflict waiver for representing both.

4. Or/And/If Living/Per Stirpes

Be careful of words like “or,” “and,” “if living,” and “per stirpes.” They must relate to the right persons. As an example, John and Betty “if living.” Bob, John, “or Fred.” Jim, John, “and” George.

5. Assignment or Bill of Sale

Use an assignment form to transfer personal property to a trust. If there is too much valuable personal property, the estate may be worth more than $100,000 and go through probate.

6. Trust Grantee, Deed Needs Accept (760ILCS 5/6.5)

Under 760 ILCS 5\6.5, a deed to a trust must be accepted by the Trust grantee.

7. Executor Access to Safety Deposits & Emails

Some financial organizations will not allow a trustee or agent into a safety deposit box unless there is specific language in the Trust or Power of Attorney to allow the trustee or the agent the authority to do so.

The same powers should be granted for passwords for digital matters, i.e. email, LinkedIn, etc.

8. Memorandum

We also provide for a ‘Memorandum,’ to give specified individuals certain personal property.

9. Direct Distribution

Allow for a direct distribution from a deceased individual from a pour over Will so that an asset does not have to be changed twice, i.e. once to his/her trust and then distribution from the trust.

10. Airfare Travel Points

Add language about airfare travel points in a trust.

11. No Contest – Pay Legal Fees

Have a no contest clause that causes the person contesting his or her share in a trust to pay all legal fees. This will certainly make said individual think twice before contesting the document.

12. Guns/Pets

If guns/or pets are being distributed, the guns should only be distributed to someone who is licensed. Special care should be placed in the trust for a pet who will take care of the pet; how much money it will cost; some pets like parrots may live longer than their keeper.

13. SNTs Protect

Supplementary Needs (special needs) language should be carefully drafted for any possible legatee that may obtain Medicaid or other government benefits.

14. Trust Too Long

If a trust is too long and the trustee(s) are too old, the number of trustees need be decided and the cost of the trust will be expensive.

15. DNR/Living Will/HIPPA

The agent under the Power of attorney for health and the doctor of the principal need some direction as to health matters.

This should be done with DNR (do not resuscitate), a living will, a HIPPA (Health Insurance Portability and Accountability Act of 1996) release form, cremation and body donation.

16. POA & Gift Powers

Does the power of attorney for property have a Gift power? This could cause conflicts but might be very important for Medicaid reasons, i.e. creating a Medicaid penalty and purchasing a qualified annuity for proper Medicaid planning.

17. POA Health & Religion

Some powers of attorney for health relate to religious matters.

18. Don’t Put Personal Property in Will

Do not put many personal property matters in the will as specific bequests because the will becomes a public matter which anyone can read. An advantage of a Trust is that it is private.

19. Trustee Fiduciary Power to Keep Assets Uninvested

One of the powers in a trust should be the ability of a trustee to keep some funds uninvested so that bills can be paid quickly without cashing in a C.D., etc.

20. Trustee’s Receipt

In a trust, draft the Trustee’s receipt for a small amount, i.e. $10, because a trust needs to own something to be effective. 

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Michael H. Erde is the Principal of Michael H. Erde, P.C. in Chicago, Illinois and focuses his practice in elder law, estate planning and estate administration. An Illinois Super Lawyer for Elder Law as featured in Chicago Magazine, he is a prolific lecturer, author, and guest professor at The John Marshall Law School.