Should I have a living trust?
A revocable living trust is a wonderful estate planning vehicle with considerable flexibility and applicability to estate plans. As is true with any trust, it has advantages and disadvantages and its suitability depends on the particular circumstances. In many estate plans, however, it is simply not needed.
Many married couples with relatively simple estates probably do not need trusts. Upon the death of the first spouse, practically all assets pass to the surviving spouse as the surviving joint tenant on joint tenancy assets (usually their marital residence, bank accounts, and other assets held as joint tenants) or as the designated beneficiary (for example, life insurance, IRAs, and “payable on death” accounts). These transfers do not depend on the deceased spouse’s last will or on a trust. If the deceased spouse owned some assets in his or her own name and not in joint tenancy, a small estate affidavit usually is sufficient to transfer those assets without probating the will or administering a trust.
For the surviving spouse and for other single adults, a revocable living trust should be considered but isn’t always necessary. We routinely administer estates in which the person did not have a trust, without probating the person's will. On the other hand, oftentimes a living trust is appropriate. Each situation is different, and sometimes the existence of a trust involves more administration than if the person did not have a trust.
Individuals considering trusts should be wary of prevalent and misleading sales techniques. Clients of Mr. Gehlbach recently informed him that they had attended a living trust seminar at a local restaurant.
The presenters admonished the attendees not to involve their attorneys, who, the attendees were warned, would try to talk them out of the need for a trust or charge them too much.
Mr. Gehlbach’s clients, who owned their relatively few assets in joint tenancy with each other or with beneficiary designations in favor of each other, were then informed that a living trust for the two of them would cost “only” $3,000. This may have seemed a bit steep until the presenters warned them that most attorneys would charge $6,000-7,000 for this service. The attendees were even given the names of two attorneys to call to verify the “normal” $6,000-7,000 charge. The clients later called the two numbers given, one apparently to a Chicago attorney and the other to a Springfield attorney. Not surprisingly, the Chicago attorney quoted the client a fee of $7,000, while the Springfield attorney quoted a fee of $6,000.
In reality, the $3,000 fee quoted is substantially higher than the cost of most legitimate estate plans prepared by competent estate planning attorneys.
My real estate agent says I don't need a lawyer to buy or sell a house. Is that true?
For most people, the buying and selling of homes are the largest financial transactions of their lives. We believe home buyers and sellers always benefit from independent legal representation, if only to ensure that the details of a purchase and sale are handled correctly.
Real estate agents and lawyers play different roles in real estate transactions. Real estate agents strive to match buyers and sellers and in most transactions represent only the seller. An agent's primary responsibility is to close on the sale of the listed property, not to identify potential problems. Agents therefore cannot and should not be expected to offer legal advice.
The lawyer’s role, on the other hand, is much broader. When we represent clients in real estate transactions, we typically review (and, if necessary, revise) contracts to ensure the provisions clearly express the parties’ intent and agreement, examine title reports, work to remove any liens or clouds on title, and prepare or review the documents that will convey title to the real and personal property. If we identify problems or potential problems, we strive to resolve them before the closing and to do so in ways that do not jeopardize the closing. In our experience, it usually is far less expensive for clients to deal with problems before a closing than to wait until after the closing.
Do both the husband and wife in a divorce need a lawyer?
While the law does not require that each spouse have his or her own lawyer, it usually is advisable that each party have legal counsel. We most often see single-lawyer divorces in cases in which the spouses have agreed (or think they have agreed) on all issues. Ethically, however, one lawyer cannot represent both spouses in a divorce. Therefore, a lawyer representing a husband in what appears to be an agreed divorce is not required (and in some circumstances perhaps not allowed) to advise the wife regarding the fairness of the agreement or whether a judge hearing the issues would resolve them more favorably for the wife. Even in an agreed divorce, we therefore recommend that the non-represented spouse retain a lawyer to review the documentation and answer any questions the spouse might have.
How do I know if I should file for bankruptcy?
Because each person’s or entity’s financial situation is different, no rule or formula exists to determine whether bankruptcy is advisable.
When our clients or potential clients seek our advice as to the possibility of filing a bankruptcy petition, we meet with them to learn the nature and extent of their assets, liabilities, income, and expenses. We then discuss with them the various bankruptcy options, and the benefits and costs of all legal options, recognizing that options other than bankruptcy may be just as effective in consolidating or eliminating debt.
I’ve been injured in an accident. Should I see my usual local lawyer or seek an expert in Chicago?
Some Chicago and suburban lawyers aggressively monitor local newspapers and accident reports, contact accident victims by phone and mail, and often create a false sense of urgency about the victim's need to immediately retain counsel. While in some instances it is important to preserve evidence that otherwise might be destroyed, in most cases the Chicago and suburban attorneys create the sense of urgency in order to persuade accident victims to hire them immediately, before speaking with their usual local lawyer. Many local lawyers, including Mr. Lee, have considerable experience and expertise in handling accident cases and are more than able to represent the victims being chased by Chicago and suburban counsel. As in any other attorney-client relationship, the most important factors in the relationship between an accident victim and his or her lawyer are trust, confidence, and accessibility. An accident victim of course should hire the lawyer with which he or she is most comfortable, whether that lawyer is from Chicago, the suburbs, or the local area.
I am a new landlord and want to know if I should continue to use the lease form in existence between the former landlord and the tenants at the end of the current lease term?
Landlord/tenant law is becoming more complicated as state and federal laws continue to be enacted to further regulate the industry. Many of the older forms in existence were not drafted to address the parties’ potential rights and liabilities under these new laws, including the Safe Homes Act, the Carbon Monoxide Alarm Detector Act, the Federal Residential Lead-Based Paint Hazard Reduction Act, and the Violence Against Women Act. In addition, many lease forms are generic forms and were not drafted to maximize a landlord’s rights. If a landlord consults with an attorney, the attorney can draft a lease form to maximize both the landlord’s rights (including the right to recover attorneys’ fees if litigation is necessary) and the tenant’s duties under applicable laws.