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Probate: The Pros and Cons

Transfer Your Assets Legally

How to Decode "Lawyer-Speak"

What the Recent Supreme Court Decisions Really Mean

How Civil Proceedings Work

Newest Court Rulings

A Strange Real Estate Story

Legal FAQs

New Laws for IL Residents

"There is something about wills which brings out the worst side of human nature. People who under ordinary circumstances are perfectly upright and amiable, go as curly as corkscrews and foam at the mouth,

whenever they hear the

words 'I

devise and bequeath."

-Dorothy L. Sayers,

Strong Poison

November 2014

What is the difference between a Living Will and a Last Will and Testament?

The September newsletter talked about ways to transfer assets upon one's death. It generated numerous questions, which we will try to answer in this and upcoming newsletters. Please remember, though: There is no substitute for individual legal advice! The following information speaks only in general terms. Each situation must be independently analyzed to determine the optimal solution. If you need a referral for a qualified Estate attorney, just ask -- we would be happy to supply names and contact information.

A Living Will is really a misnomer. It is not a Last Will and Testament, typically referred to as a Will. A Living Will is a legal document signed by a person describing to their doctor and hospital what type of life-saving procedures they do or do not desire when that person cannot speak for themselves. For example, a Living Will applies when the patient is near end-of-life and in a coma.

Click on the image above
to view the standard Illinois Living Will Act

In addition, the person signing the Living Will must be mentally alert enough to understand that they are signing this document. A Living Will is sometimes referred to as an advanced directive or a medical directive. Anybody can fill out a Living Will. In fact many hospitals have their own versions available for patients requesting them. The standard Illinois version can be found here.

This may surprise you, but each state is different in their requirements for a Living Will. Rarely will one state honor a Living Will made out in a different state. In Illinois, for instance, the Living Will has to be signed, and then witnessed by, two people who are not heirs or legatees under that person's Will.

A Last Will and Testament is a legal document that tells people who you wish to leave your real estate, stocks, bonds, money, jewelry, and other personal items to. It is a much more formal document than a Living Will. There are many requirements in Illinois for a Last Will and Testament to pass muster. Among the requirements are that the person signing the Will must have a notary authenticating their signature, and at least two witnesses swearing that the signer signed in front of them, and was mentally cognizant of what he or she was signing. In addition, each page must be initialed by the signer, and the person who assisted the signer in writing the Will must place his or her name on the last page.

It is recommended that if there are changes in a Will, one does not merely cross out that line and handwrite a replacement line. Many a Will has been challenged in court as being fraudulent because the signer scratched out a line and replaced it with another! Although not a legal requirement, it is best if a Will is not handwritten. Again, many court battles have been fought over these so-called "holographic" Wills.

Unlike Living Wills, a Last Will and Testament should be written by an attorney licensed in the state the signer is living. The Will is such a peculiar instrument that writing it should be left to professionals knowledgeable of the arcane rules of that state so that the signer will be assured that his or her intentions and desires will be carried out with a minimum of fuss. Also, unlike a Living Will, most states will honor a Will written in another state and presented in a different state, as long as the Will meets the legal requirements of the state it was written in. Since each Will is different, there is, at least to my knowledge, no standard Illinois version.

New Laws Coming in 2015

2015 is almost here... And that means more new laws! Here are a few of the many laws that will become effective January 1, 2015. We will list more in the coming issues.

House Bill 8 impacts Illinois employers employing one or more employees. They will be required to provide "reasonable accommodations" to part-time and full-time employees, probationary employees, new employees, and job applicants facing "pregnancy and childbirth related issues or medical or common conditions related to pregnancy or childbirth."

Public Act - P.A. 98-0961 changes how spousal maintenance is determined for divorcing couples whose combined gross income is less than $250,000.

Chicago Life Safety and High Rise Ordinance states that High Rise properties must have fire sprinklers installed or building owners will get fined.

I hope you find this newsletter helpful. As always, feel free to circulate this email to your friends, family and colleagues. If you have questions about a particular legal matter, just call me or send me an email.

Law Offices of David Clough P.C. | 312-849-3000 | david@davidcloughlaw.com | www.davidcloughlaw.com
55 West Monroe, Suite 3950, Chicago, IL 60603