John T. Brady

Peoria IL Attorney

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Probate

When a person dies, there must be some way of determining how the property that the person owned at the time of death gets transferred to the new, rightful owner of the property.  Sometimes, especially when the person dies without owning a lot of property, and the property has very little value, there are informal mechanisms that are used to transfer ownership.  When an elderly husband dies, everyone would probably agree that the “pots and pans” in their home should automatically be owned by his surviving spouse, and that she can go on using these household items without dispute or disruption.

When the asset has more value than “pots and pans”, however, the process can become more complicated.  What about the house where the wife and deceased husband were living at the time of his death?  Can she automatically continue to live there? What if there is a mortgage on the home?  If there is a mortgage, must the mortgage be paid, or did the need to make the mortgage payment to the bank cease with the death of the husband?  These are the kinds of questions that “probate law” is concerned with.

Frequently Asked Questions

What is “probate”?  In general, probate is the legal process that determines who should legally receive a deceased person’s property, and what bills that were unpaid at the time of the person’s death must legally be paid. Each state has its own “probate” laws.

Is probate always required when a person dies?  No, probate is not always required – in fact, it is often not needed.

What determines whether probate is required as a result of a person’s death?  It can be somewhat complicated to determine when probate is required.  Generally, the question of whether or not probate is required is determined by the answers to the following questions: what was the value of the property that the person owned at the time of death, and how was “title” to the property held?

Why is the value of the property important in deciding whether or not probate is required? One of the primary reasons that the value of the property is important is because there is an alternative way to transfer the property if the value of the property to be transferred at the time of a person’s death is under $100,000.

How does the property get transferred if its value is under $100,000.00?  The most common way for property to be transferred, if the total value of all the personal property is under $100,000.00, is the “Small Estates Affidavit”.  Note that we are talking about the total value being less than $100,000.00, and that it relates only to “personal” property, as opposed to “real property”.  The term “real property” generally translates to “real estate”.  If the value of the personal property is under $100,000.00, the court probate process can still be used, and sometimes probate is recommended, even with small estate.

Mediation

When people disagree, the traditional legal method for resolving such disputes has usually been a lawsuit, and a trial in a courtroom before a judge (and perhaps judge and jury). However, this courtroom process is almost always a long and expensive process. It almost always makes the parties more bitter towards each other than they were before.  Lawsuits create winners and losers.  Especially where there will be a continuing relationship between the parties (as in a divorce that involves minor children), having one party be a “winner” and the other party a “loser” is hardly a recipe for harmonious future relationships.

As a result, in recent years, forms of “alternative dispute resolution” (ADR) have become more common. The two most significant forms of ADR are arbitration and mediation.  Each of these forms of “alternative dispute resolution” is almost always less expensive, less time consuming, and more sensitive to the continuing relationship between the parties, than a courtroom battle.

Frequently Asked Questions

What is mediation? Mediation is a non-judicial (“out of court”) process in which the parties to a dispute use an independent third party, called a “mediator”, to attempt to resolve the issues between them. The mediator is independent of the parties, and does not take sides in the dispute.  The mediator works to see if the parties, by focusing on the issues with the mediator’s help, can come to an agreement.  The mediator does not have any power to decide the dispute; that power remains with the two parties at all times.

How much does mediation cost?  Each mediator sets their own fees.  However, the costs for mediation are typically less expensive than resolving the same dispute in court.

Can parties be forced to go to mediation?  Mediation requires the voluntary agreement of both parties.  Thus, neither party can be forced to agree to certain terms in mediation.  However, in some cases mediation can be required, either by state law or court rules, or by a contract the parties made at an earlier time.  For example, the Illinois Supreme Court has adopted Supreme Court Rules making mediation mandatory in all cases where there are unresolved issues involving the care of minor children in the event of the dissolution of a marriage.

Elder Law and Estate

No one wants to think about death and dying.  But despite our desire to avoid thinking about these topics, we know that the inevitable will one-day happen to each of us.  When it does happen, it will be important that there is a good plan in place to provide for those who will survive us after our death.

That’s where “estate planning” comes in.  The purpose of “estate planning” is to put a plan in place that will increase the long-term security for your family and those important to you.  It is a way to help insure that the goals and dreams that you have for your family will become a reality, and continue when you are no longer personally present to make that reality happen.

But “elder law” involves more than planning for what will happen after a person’s death.  “Elder law” involves preparing a plan that addresses who will make personal and financial decisions for you during your lifetime, in the event that you are unable to do so yourself, in addition to decisions about what will happen to your financial assets after your death through preparation of a will. This “elder law” process can include the creation of such documents as powers of attorney, trusts, and “living wills” that can be effective during your lifetime, in addition to instruments that address what will happen to your assets after your death.  The elder law planning process may also address issues related to long-term care, nursing home care, and Medicaid planning.  In the event that there are minor children or loved ones with disabilities that may survive.

Frequently Asked Questions

What is a will?  A will is a document in which a person (called a “testator” or the “maker” of the will) directs how that person’s property should be distributed at the time of the person’s death.  Each state has different laws about what must be done in order for a will to be legally enforceable at the time of that person’s death.  A will can do other things as well as state how that person’s property should be distributed on that person’s death.

What else can a will do?  There are lots of things that a will can do beyond the bare minimum definition of a will that is set out above.  If you have a child or children under the age of eighteen, you can name a guardian, and a successor guardian, for those children.  You can give the guardian directions about what actions you would like the guardian to take regarding those children, their care, and their finances.  One way that you can do this is by establishing a “trust” for minor children in your will, to become effective at the time of your death.  In a will, you can provide for others besides family members: friends, charities, educational institutions, even former boyfriends (or girlfriends), all can be made “beneficiaries” of your will, to take property under your will at the time of your death.

In a will you can also state who you would want to become the “executor” of the will on your death.  The executor is the person who does those things that you have said in your will should happen as a result of your death.

What happens if a person dies without a will?  In Illinois, if a person dies without a valid will in place, the property passes to the nearest relatives of that person according to the schedule of “intestate succession” (sorry to use a complicated legal term, but it’s probably necessary here) that is set out in the Illinois Probate Act.  In this law, the legislature has tried to “guess” where a person would want their property to go, if there is no will.  So, for example, if a person dies and leaves a spouse surviving, but no children (or grandchildren, or greatgrandchildren …), all of that person’s property (after the payment of debts that might be legally required) would go to the surviving spouse. If a person dies and leaves a surviving spouse and two surviving children, the surviving spouse would take half of the estate, and the two children would each receive a fourth of the estate.  The statute takes the possibilities for succession far down the line of survivors, to address every circumstance that might arise.

If a person is unhappy with their spouse, can they “disinherit” the spouse in their will?  A will may still be valid in Illinois, even if it does not make any gift to a spouse in the will.  However, in Illinois, a spouse can “renounce” their predeceasing spouse’s will for any reason.  If a spouse renounces the will, the surviving spouse can take one-half of the estate available for distribution if the deceased person no surviving descendants, and one-third of the estate if there are surviving descendants.

Can I change my mind about my will after I have made it?  Generally, the answer is “yes”; as long as the person still has the legal capacity to make a will, and the will follows all of the legal formalities required to make a will valid, a person can change their mind, and make a new will, or amend their old will, at any time before their death.

What does it take for a will to be valid in Illinois? In Illinois, to be valid, a will must be in writing, signed by the person whose will it is, and that signature must be witnessed by at least two persons who the law considers to be “disinterested” in your will and estate.

It doesn’t take much for a will to be valid in Illinois; sounds like something I can do myself without an attorney?  The process is probably more complicated than it sounds, at least to do it right.  If you try to do it yourself, and make a mistake, the mistake may not be discovered until after your death.  Then, it likely will be impossible to correct that mistake.  The mistake could make your will meaningless, and require things to be done that you never intended.

Adoption

Families come in all shapes and sizes. Each family is different, and there is no “ideal” family size or makeup. Sometimes an individual or a couple will want to expand the size of their family through adoption.

Adoption is the legal process of making a person born into another family permanently and forever the adoptive parent’s child: it is an exciting and rewarding process! At the same time, however, adoption can also be frightening and filled with uncertainty. Because of this, it is important to have experienced and caring legal counsel at your side to help you through the adoption process.

If adoption is an option that you would like to explore, I hope that the information on this website will be helpful to you. If you are considering adoption (or if you have already begun the process, and not yet hired an attorney), remember that it can be important to get good legal advice early on. I have been helping individuals and families in central Illinois through the adoption process since 1979, and I invite you to contact me to see if I might also be able to help you.

Frequently Asked Questions

What is an adoption?  An adoption is the legal process by which someone who was born into another family legally becomes forever the member of another family.  Adoption creates a new parent-child relationship between the person(s) adopting and the person being adopted.

Is an adoption the same as “guardianship”?  No, adoption and guardianship are two different types of legal proceedings.  In both of these proceedings, the person or couple that files the legal proceedings in court is granted certain rights over the care and custody of another person.  However, there are important differences between the two types of proceedings, guardianship and adoption.

Who in Illinois can adopt another person?  Each state has different laws about what is required in an adoption.  In Illinois (although not in all states), the person adopting can be a single person or a couple. The couple can be married, or in a civil union, or without a legal relationship between them. The person being adopted can be under the age of eighteen (a minor) or an adult.

What services does this firm provide in an adoption?  There are different parties to an adoption, and each of these different parties can have different legal interests. Because of this, we always want to be clear at the beginning of the process who it is that we represent.  Birth mothers, putative fathers of a child, legal fathers, and adoptive parents all have differing legal rights that must be respected. If all aspects of the adoption process are not handled legally and properly, an adoption may be subject to later legal challenge.

Often the parties to an adoption reach an agreement among themselves about the adoption. If so, it is important that all parties have a clear understanding of their rights and obligations regarding the adoption. Appropriate action must be taken to terminate the parental rights of both the birth mother and the legal birth father. Illinois law places limits on what kinds of expenses can be paid by the prospective adoptive family, and Illinois law also specifies the kinds of documents that a birth parent must sign to terminate their parental rights.

When we work with a family seeking to adopt, we help the adopting family gather the information required by the adoption process, and then draft the necessary legal documents to comply with the various legal requirements.

An important part of our services to a family is to counsel clients about problems that may arise during the adoption process in such a way that will allow our clients to anticipate and avoid these problems, and to comply with the various state laws (for example, the Illinois Adoption Act and the Interstate Compact on the Placement of Children Act) and federal laws (for example, immigration laws and the Indian Child Welfare Act) that must be observed in an adoption. In addition to appearing in court with the family at the time of the required adoption hearing(s), as suggested above, a knowledgeable adoption attorney can help in many other ways.

Sometimes adoptions are contested. We have experience in working with the complicated legal and emotional issues that arise in a contested adoption. If issues arise that are not directly related to the legal process, we may be able to suggest resources to help address the personal and emotional challenges that can arise.

In some cases, (when we are not already working with the family that will adopt this same child) we provide services to birth mothers and fathers of children who are considering allowing someone else to adopt their child. In addition, because of our extensive knowledge in these areas, we also from time to time work with private adoption agencies to help them address the challenges they face in helping families with the adoption process.

“What are the different types of adoption available in Illinois?”  Because there are different legal protections that are required in different circumstances, Illinois recognizes different types of adoptions. While each of these types of adoptions share some things in common with other types of adoption, they also have differences. Generally, we can talk about private adoptions, agency adoptions, foster care adoptions, related adoptions, interstate adoptions, intercountry/foreign adoptions, and adult adoptions.
“What is a private adoption?”  In a private adoption, the birth parents choose a family to place their child with, without the direct services social service agency. The identities of all of the parties can be kept private and confidential, or information on the parties can be freely shared.

“What is an agency adoption?”  In an agency adoption, the birth parents typically “surrender” their parental rights to the child to a licensed child welfare agency. That child welfare agency then assumes responsibility for the care of the child, and has the legal right to choose which person or couple will adopt the child. Most adopting agencies have a waiting list of families who desire to adopt a child.  Depending on everyone’s wishes, the birth parents may or may not be involved in the process of selecting the family where the child will be placed. While each private adoption agency has common requirements, the fees and procedures followed by an adoption agency can vary from agency to agency, and in different parts of the state.

“What is a foster care adoption?”  In Illinois, as in the vast majority of other states, the child welfare system is responsible for the care of literally thousands of young people who have been abused or neglected by their birth family. Each of these young people deserves and requires a permanent home. These foster care children come from a wide variety of races and backgrounds, and can range in age from infants to teenagers hovering on adulthood.  The Illinois Department of Children and Family Services, working with private child welfare agencies, attempts to match prospective adoptive families with children needing a “forever” home. These “foster care” adoptions are a special type of “agency” adoption, and, in order to encourage the adoption of such children, various forms of financial assistance to adopting families, to help with the raising of such children, are often available. These subsidies can include ongoing payments for the child’s care after an adoption is finalized, a medical card to address the child’s medical needs into the future, and assistance with the attorney fees and costs involved in the court process of adopting a child.  John T. Brady is a member of the Department of Children and Family Services statewide Adoption Attorney Panel.  Private adoption agencies and the Illinois Department of Children and Family Services can provide additional information about “foster care”/”subsidized” adoptions.

“What is a “step-parent” or a “related” adoption?  Sometimes, where one of the birth parents has been “absent” or not involved in a child’s life, a new spouse of the other birth parent may seek to adopt the child.  In such situations (as well as others), the birth parent providing primary case for the child and that parent’s new spouse can seek to adopt the child.  Sometimes, neither birth parent may be providing case for a child, and a birth relative of a child may seek to become the child’s legal parent.  Such situations are “related” adoptions, and there are slightly different procedures in such circumstances than those where no legal relationship to a child already exists prior to the adoption.

What is an “interstate” adoption?  Different states have different types of benefits that the state pays to its residents.  These benefits cost the state money.  At times, the different types of benefits – especially financial ones – available in the different states have made it more advantageous for a child to live in one state rather than in another.  Partly because of this, the individual states want to have control over children who enter their state, if the child may need to be provided with services by the state the child is entering.  When a child moves from one state to another, the state the child leaves may save money, and the state the child moves into may need to spend money to support the child.  With a movement across state lines, one state may get to save money (by not providing services to a child), another state may need to spend money for the child’s welfare.  Because of this there are limits on when a child who is being adopted moves from one state to another.  The primary law that describes what is required when a child who may be the subject of an adoption moves from one state to another is called the “Interstate Compact on the Placement of Children”, and its provisions must be complied with for an adoption to satisfy legal requirements.

“What is an “international” adoption?  Sometimes a family will be motivated to adopt a child living in another country.  This typically involves trips to the other country, and working with adoption agencies, both here and in the foreign country.  Legal proceedings will occur in the other country, and these proceedings often result in the parent-child relationship being established in the other country such a way that the U.S. legal system will recognize the child as legally related to the parents at the time of entry of the child into the United States. Sometimes, the adopting family will also seek to have the child “readopted” in an Illinois court.  Recent changes in Illinois law have streamlined the process required to make this happen.

What is an adult adoption?  Children aren’t the only ones who can be adopted.  Illinois law also allows persons over the age of eighteen to be adopted.  The adoption process for adults is much simpler than the process for children.

 

 

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