Frequently Asked Questions

WHAT’S THE DIFFERENCE IF I DIE WITH A WILL OR WITHOUT A WILL?

A will is the expression of your final wishes. You designate who will oversee the collection of assets, payment of debts, and distribution of assets. Persons identified to receive assets may be your spouse or descendants (heirs) or non-family members (beneficiaries). You also have the opportunity to designate someone (a Guardian) to care for any children under the age of 18. To be valid, the will must be accepted for probate by the court.

If you die without a will, your assets will be divided between your surviving spouse and children according to guidelines set forth by state law. In most states, a large percentage of your assets will go to your surviving spouse with the balance divided between your children. The law contains provisions for distribution should you die leaving a surviving spouse and no children, or leaving no surviving spouse but with surviving children, or leaving no surviving spouse or children. There are several variations possible and each case must be examined and evaluated individually. The key is to remember that if, during your lifetime, you had expressed a desire for certain family members to receive specific assets, there is no obligation to honor your request.

Special consideration must be given in situations where you are part of a blended family. A blended family is one where both spouses are not the natural parents of all the children in the household. The husband may enter the marriage with his children, and the wife may do the same with her children. No matter how young the children are or how many years both spouses may nurture the children and consider themselves to be one happy family, his children are not her lineal descendants and her children are not his lineal deescendants. In such a case, the absence of a will means that one set of children will not inhereit upon the death of either spouse.

I HAVE A WILL AND WANT TO TAKE OUT A BEQUEST, CAN I JUST SCRATCH THROUGH THE BEQUEST AND INITIAL THE CHANGE?

No. To blackout or change any item in the will by hand could cause the court to reject the will in its entirety or reject the change. Look at it this way, how is the court to know who made the change and initialled the document? The scratch off could have been done by a greedy heir or one heir trying to spite another. The law contains specific provision for changing a will (a ‘codicil’) without having to prepare and execute a whole new will. Talk to your attorney, he can make the desired changes without voiding the original will.

May I disinherit my spouse?

Yes, you may disinherit your spouse, but Illinois has a law protecting the spouse to a certain extent. The spouse is entitled to $10,000, and any dependent children are entitled to $5,000 each. The law actually provides that the surviving spouse and children are entitled to support for nine months after death, in an amount not less than $10,000 or $5,000. Thus, if the spouse and children can establish that they need more than that for their support, they can get the higher amount. This law does not apply to grown children, only to dependent children. A testator has the right to disinherit grown children.

What happens if someone dies without a will?

If someone dies without a will, Illinois laws called the rules of intestate succession apply. In Illinois, the intestate succession rules provide that all of the estate goes to the surviving spouse, if there are no children (or grandchildren). If there is a surviving spouse and children (or grandchildren), one-half goes to the spouse and one-half goes to the children. If there is no surviving spouse, but there are children, then all of the estate goes to the children.

If there is no surviving wife or children, the estate goes to brothers and sisters and their descendants. If they don’t exist, it goes to grandparents and their descendents. For a full explanation of Illinois intestacy laws, and how they might affect your situation, see an attorney experienced in wills and estates.

What can my credit card company do if I fail to pay my bill?

The credit card company’s rights are set out in the fine print in your credit card contract. Generally, the credit card company has the right to sue you to recover past due amounts. As a practical matter, however, they usually undertake collection efforts prior to filing suit, such as calling you at home or sending you letters in the mail. The collection efforts typically escalate as the debt gets older. Another step they can take is to cancel your card, which denies you any further credit from that company. All these efforts can harm your credit rating, which could make it more difficult for you to obtain credit in the future.

What does joint custody mean?

In the typical post-divorce arrangement, one ex-spouse will have custody of the child or children, and the other spouse has visitation rights. As a practical matter, this means that the children live with the one parent, and then they stay with the other parent on, for example, alternating weekends. Where the non-custodial parent lives out of town, the children might visit him or her on designated holidays or during parts of their summer vacation.

Joint custody means that the two ex-spouses share legal custody of the children. In some cases, the children will rotate from parent to parent. In other cases, the children will live primarily with one parent, but the other parent plays an active role in their upbringing. Where both parents work, and they share school drop-offs and pick-ups, joint custody offers them more flexibility because either parent can sign school documents or grant sick-day permission. Joint custody isn’t typically used where one spouse lives out of town.

Do I have to give my ex-spouse visitation rights?

Yes, generally, unless you can establish to the court’s satisfaction that your ex-spouse may flee with or harm the child.

What is involved if I start a business under an assumed name?

In Illinois, under the Assumed Name Act, if you want to operate as a sole proprietor under any name other than your own, you have to register with the local county clerk’s office. In fact, you have register with the clerk regardless of the entity you choose. Your local bank should be able to supply you with the papers you’ll need to fill out and information on the costs that you’ll incur.

If I get a divorce, who pays the mortgage?

If both names are on the mortgage, you both continue to be responsible for the debt, regardless of who is actually living in the house. Unless the mortgage holder agrees to remove your name (an unlikely event), you’re not going to be able to get your name off the mortgage. In that event, one option is to sell the house and pay off the mortgage.

When do you have to probate a will?

If all of a decedent’s assets were transferred to a trust, and nothing transfers by reason of his death, probate will not be necessary. Otherwise, if ownership of any of the decedent’s property passes by reason of his or her death, probate will be necessary, unless the estate has a value less than $50,000 (because special rules apply for those smaller estates).

What is required to gain asylum in the U.S.?

Asylum laws protect those fleeing to the United States to escape political, religious, or social persecution. The one seeking asylum must demonstrate a “well-founded fear of persecution” stemming from their political beliefs, their race, their religion, their nationality, or their membership in some unpopular group. Whether the fear will be deemed to be well-founded will depend, at least in part, upon which way the political winds are blowing in the U.S. at that moment. Someone escaping from a country whose troubles have gained wide media attention, for example, will generally have a better chance than someone escaping from a lower-profile country.

What happens if we can’t find the deceased’s will?

If you cannot find the original will, the probate court will typically presume that the deceased destroyed it. You should note that it must be the original will; even copies are generally not good enough.

How can I stop telemarketers from calling my home?

Place your name on the Federal Trade Commission’s Do Not Call list: http://www.ftc.gov/donotcall. Some smaller organizations, however, such as neighborhood newspapers and the local policemen’s benevolent association, will probably continue to call.

To what extent am I legally responsible for my child’s actions?

Parents are legally responsible for their child’s actions. Parents can be held civilly responsible for their child’s criminal acts. Illinois, for example, has a Parental Responsibility Law, which holds parents responsible for up to $2,500 for willful or malicious acts committed by their children. Illinois also has a law requiring parents to pay juvenile court costs if their child is hauled before the juvenile authorities. At this point, there is no criminal liability for a child’s criminal acts — parents cannot be put in prison if their child commits a crime — but some have suggested that there should be. At the very least, there is a growing movement to allow victims of a child’s violent behavior to be able to sue the parents for the injuries they suffered.

Under what conditions can I collect unemployment benefits?

Unemployment benefits are available to those who lose their job through no fault of their own. Thus, if an employee quits or is fired for poor job performance, the employee is generally not entitled to unemployment benefits.

How long does COBRA last?

COBRA is a federal law that allows an individual between jobs to continue to pay for health insurance coverage provided to him in his previous job, under certain conditions. Generally, it provides coverage for 18 months. The coverage can be extended up to 36 months under certain conditions, such as where coverage is terminated due to the employee’s death or divorce.

What can I do if my employer reneges on a promise to provide retiree health insurance coverage?

Years ago, many employers offered certain retirees a promise of lifetime health coverage at company expense as part of their benefit package. When health care costs skyrocketed, many employers looking to cut costs began dropping retiree health coverage.

Whether your employer can drop its coverage depends upon your plan documents. If the documents contain a specific promise to maintain coverage during your life at their expense, you may be able to stop them for reneging on the promise. Absent the specific promise, however, there is nothing to prevent an employer from dropping the coverage, even where they led you to believe that they would provide them. If you think that you might be protected, talk to an attorney about your options.

What are my workplace rights if I’m environmentally sensitive?

For the most part, there isn’t much regulation of indoor air. There is, however, a growing recognition of what has become known as sick building syndrome, which is flu-like symptoms often caused by poor ventilation. The first place to start is to notify your employer’s human resources department of your problem. If they don’t remedy your problem, talk to a workers compensation attorney about your options.

As a new business owner, do I need to write a business plan?

The general rule is that you don’t need to write a formal business plan unless you need to raise funds, either by borrowing from a lender or attracting investors. Even for those who don’t need to raise funds, however, writing a business plan can be a good idea because it forces you to come to terms with important aspects of operating your business.

What are my options if my ex-spouse stops paying child support?

Your first option concerns who will collect the overdue child support. You can do it yourself, or you can hire someone else to do it, such as a lawyer, collection agency, or social services agency. Changes have been made to the law in recent years to give you easier and more powerful tools to collect overdue amounts. For example, you can have your ex-spouse’s driver’s license suspended, under certain conditions, and you can get the court to issue an order withholding pay from your ex-spouse’s paycheck. Doing it yourself will be the cheapest option. Whether you want to handle it yourself will depend upon the time you have, how hard you believe your ex-spouse will fight the process, whether you ex-spouse lives in Illinois, and whether your ex-spouse has a steady job. One suggestion is to go to your local courthouse and ask them what processes are available to you. If it sounds too difficult or time-consuming, talk to a divorce attorney.

Under what conditions should I put my possessions in a trust?

Some people choose to place their possessions in a living trust in order to save their descendants the trouble of having to put the estate through probate after their death. This works, however, only if every asset is part of the trust. If not, those assets that are not part of the estate will generally have to be probated.

A trust can also be an estate-planning tool to help larger estates avoid or reduce estate taxes. The first spouse to die can transfer his or her estate to the surviving spouse without incurring estate taxes. The surviving spouse’s estate, however, will pay estate taxes when he or she dies. By placing their assets in trusts, a married couple can avoid or reduce what their estate otherwise would have had to pay. Talk to an estate planning attorney to discuss whether a trust makes sense for you.

How can I prove age discrimination?

Under the Age Discrimination in Employment Act, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment. The law applies to those who are at least 40 years of age, and it applies to all aspects of employment: hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The law covers employers with at least 20 employees; all governments, including federal, state, and local governments; employment agencies; and labor organizations.

To prove age discrimination, you would need evidence that your employer engaged in discriminatory activity. In the case of a single incident, such as a younger person was promoted over a person who is at least 40 years old, you would need strong direct evidence of discrimination, such as statements, email, or correspondence from the employer admitting or strongly implying that age was a factor in the decision to promote the younger employee.

In some situations, you may be able to prove age discrimination by demonstrating that the employer engaged in a pattern of disriminatory behavior. For example, if you didn’t have strong direct evidence of age discrimination, you might still be able to establish it by showing that every time or virtually every time the employer offered a promotion, it gave it to the younger person. Talk to an employment attorney about what might be necessary in your particular situation.

If I file for bankruptcy, will my creditors be able to get to my retirement account?

Generally, no. Proper retirement accounts, such as those in a 401(k) plan or IRA, are exempt from creditors’ claims in bankruptcy.

What are my options if I no longer trust my business partner?

The simplest option is to cease doing business with your partner. If that isn’t the option you want to pursue, you need to take a closer look at how your business is organized. If you are organized as a partnership, you need to remember that all partners are responsible for partnership debts, which means that you are potentially responsible for your partner’s actions. You may want to consider changing the business to a form where you have some liability protection from the acts of your co-owners, such as a corporation or a limited liability company. Talk to an attorney about which options best suits your situation.

When do I lose the earnest money I put down on a house?

When you make an offer to buy a house, you signed a real estate contract. The conditions under which you will lose your earnest money are contained in the contract. Generally, if you’re unable to come up with the purchase money at closing, you’ll lose your earnest money.

The typical contract has a mortgage contingency clause, which provides that the contract is contingent upon the buyer obtaining a mortgage commitment by some specified date. If the buyer is unable to obtain the commitment, the contract is void and the earnest money is returned to the buyer. Some people mistakenly believe that they’ll lose their earnest money if they cannot get a mortgage commitment, but that’s not true.

What privacy rights do I have in my computer at work?

An employee generally doesn’t have any privacy rights in a workplace computer. The theory is that the employer has paid for the computer, has provided the network, has provided the office space you’re working in, and is paying you to perform work. They have a right to monitor what you do on their computer while on their time.

Does a spouse have to join a bankruptcy filing?

No. You can file for bankruptcy without having your spouse join you, but any assets in which you have an interest will be part of the bankruptcy estate, which means that your spouse’s interests may be affected even though his or her name is not on the bankruptcy petition.

At what point should I file for bankruptcy?

That’s a difficult question with no easy answer. The timing for any particular individual is best left for that person’s bankruptcy lawyer. If you’re insolvent, which means that you’re paying out more than you’re bringing in, and you don’t see any change in your financial condition in the foreseeable future, it’s probably time to talk to an attorney.

Can creditors get to my Social Security benefits?

Generally, no, although the IRS is allowed to use your benefits to pay back taxes and the benefits may be tapped to pay court-ordered child support.

If I have an accident out of state and want to sue the other party, where should I file the suit?

Under the typical jurisdictional rules, you have a choice to make. You can file suit in the state where you live, the state where the other party lives, or the place where the accident occurred. You should consult with an attorney to discuss the best place for you to file suit. The decision will depend upon factors such as convenience and availability of witnesses.

What can I do if my landlord refuses to give back my security deposit?

If your landlord refuses to return your security deposit, you’ll probably have to file suit against him or her in small claims court. The only real option short of filing suit is to talk to attorney about having the attorney write a letter on your behalf to the landlord demanding return of the security deposit. Talk to an attorney about which option works best in your situation.

What makes a will valid?

Wills are valid when they meet all the requirements of Illinois law. Those requirements are that the will must (1) have been made by someone at least 18 years old who is of sound mind, (2) be in writing, (3) have been signed by the one making the will, and (4) have been attested by two people who witnessed the testator’s signature. The laws also provide guidance on what to do if the testator cannot make his or her own signature and what constitutes a revocation of the will.

Under what conditions may I sue my doctor for a misdiagnosis?

Generally, you can sue a medical provider for malpractice if the provider’s care falls below the standard of care for that type of treatment. Since the appropriate standard of care can be identified only by others practicing in that field (except in situations where malpractice is obvious, even to the layperson), you can sue your doctor when you or your lawyer are able to find another doctor willing to state under oath that he or she believes that your doctor’s care fell below the standard. Remember, however, that medicine is not an exact science. Some mistakes, including some misdiagnoses, may not be grounds for a lawsuit.

How long does it take to evict a tenant?

The eviction process in Illinois begins with providing notice of the eviction to the tenant. Evictions for nonpayment of rent require a five-day notice. Evictions for all other reasons require a 10-day notice. Evictions where the lease contains a specific end date do not require any notice. If the lease agreement contains a longer time than that provided by law, for example, 30 days, the longer time would apply.

If the tenant fails to move out after the eviction notice is served, the next step is to file an eviction suit. The length of time involved depends upon how long the sheriff’s department takes to serve notice on the tenant, how quickly a court date is set, whether the court date is ever postponed, and whether the tenant appeals a decision rendered against him or her.