Powers of Attorney
Broad-ranging "durable" powers of attorney, that is, powers of attorney that continue in effect despite the legal disability of the person who grants them (the principal), are so important in estate planning that the AARP recommends that every one of its members should have such powers in place. Otherwise, if a person becomes disabled, there is no legally effective alternative to a guardianship, which is an expensive, intrusive, and time-consuming (for the guardian) court-supervised procedure.
In Illinois, there are statutorily approved forms of such powers of attorney for both property transactions and health care. These are designed to be usable by the public without need of professional legal assistance, but in practice most estate planning clients can benefit from such assistance in understanding the forms and adapting them to their particular situations. As one of the obligations of his membership in the AARP Legal Services Network, Mr. Sawyier will prepare durable powers of attorney for property transactions and health care for the nominal fee of $70.00 per set for any AARP member who is his client.
Irrevocable Trusts
If the grantor of a trust makes it irrevocable and the trust is not for his or her benefit but, instead, for the benefit of the children or other family members of the grantor, then the assets placed in the trust can be preserved intact for the intended beneficiaries as long as the trust lasts. This "spendthrift" protection applies to almost all legal claims upon or against the beneficiaries (with certain limited exceptions). The grantor may not make such gifts in trust in fraud of the grantor's own creditors, but the grantor may rest assured in almost all cases that the trust assets, while they remain in trust, will not become available to the beneficiaries' creditors - - and will only be distributed accordingly to the grantor's wishes. These are two of the most important historical reasons for the use of irrevocable trusts, which are now in widespread use by middle-class families, not only by the very rich as once was true in the past.
One of the most common examples of such irrevocable living trusts, that is, trusts established while the grantor is still living, is the irrevocable life insurance trust. Because the face amount of the life insurance owned by such trusts can itself exceed the insured's "exemption equivalent amount" for estate tax purposes, or at least augment the rest of the insured's or a surviving spouse's taxable estate well beyond that amount, irrevocable life insurance trusts are frequently used for the purpose of removing life insurance from both spouses' estates and thus saving estate taxes.
Mr. Sawyier has extensive experience with irrevocable trusts, including life insurance trusts, and will assist his clients for a surprisingly modest fee to establish and maintain them, even providing for a large measure of flexibility, where desired, through the use of trust
"protectors."
Revocable Trusts
Although many families already have established revocable trusts as part of their estate plans, many of these trusts have gone unfunded, in which case they may accomplish nothing at all. It is essential to transfer at least any real estate owned in the name of a single grantor (rather than jointly) into that grantor's revocable trust before his or her death or else there will have to be a probate estate opened in order to transfer the title. It is also highly desirable to make similar advance transfers of tangible personal property, i.e., personal belongings, as well as most if not all investment accounts - - but not retirement accounts - - into the trust.
Powers of attorney may, if they are properly worded, enable the agents to make such transfers in trust on behalf of the principals prior to their deaths. However, there can be many complications that delay or prevent such last-minute transfers by agents. Far better, to fund the trusts in advance so that the ownership continues unchanged upon the grantor's death and the intended distributions - - or share allocations of a continued trust - - can take place immediately, outside of probate.
Regrettably, many families also have joint revocable living trusts for both spouses. However, it is almost always preferable for transfer tax, asset protection, and other reasons, in both Illinois and Indiana, for each spouse to have a separate trust and related "pourover" will.
Mr. Sawyier has extensive experience with revocable trusts, which he constantly applies for the benefit of his clients.
Wills and Probate
Almost every adult person should have a will even if the person has a living trust because a will is necessary in order to transfer any property titled in that person's name to the trust (or otherwise in accordance with the person's wishes) after the person's death. With proper planning, there should be little enough such property left outside of the trust by then that a probate proceeding will not be necessary, because the "small estate affidavit" procedure can instead be used. However, as is so often the case, there may not have been proper estate planning, in which case, in the absence of a will, any of the deceased person's assets that are of a kind subject to probate may have to be included in a probate proceeding. They will also, in any case, have to distributed in accordance with the state's law of intestate succession, i.e., inheritance without a will, which is often contrary to the deceased person's wishes.
Wills are especially important for the parents of minor children in order for them to appoint third-party guardians for their children upon their deaths.
Mr. Sawyier's experience in wills and probate, both testate and intestate, includes very large as well as relatively small estates. He will help his clients to conclude any necessary probate cases as promptly and economically as reasonably possible.
Guardianships
If there is no durable power of attorney to enable the agent to protect the principal in case of legal disability, a guardianship may be the only option. Once the principal is already incompetent, he or she can not create a valid power of attorney.
Mr. Sawyier attempts to ensure that all his estate planning clients have durable powers of attorney in order to enable their loved ones to protect them without need of a guardianship. However, if a guardianship is necessary, he is ready and able to assist his clients in that way, too.
Family Limited Liability Entities
For a brief discussion of some of the many benefits of family limited partnerships and limited liability companies for many clients, Mr. Sawyier refers you to his most recent presentation to the Chicago Bar Association's Trust Law Committee, reproduced at the end of this website. The most fundamental benefit of such limited liability entities, of course, is that, if properly established and operated, they can protect the personal assets of the owners from liabilities arising from the business of those entities.
Mr. Sawyier practices extensively in this field of law, lectures in it, and seeks to assist all his clients for his usual reasonable fees to obtain all the benefits of such an important form of asset protection.
Tax Planning and Preparation
Mr. Sawyier has a post-graduate professional degree in Tax Law and has the ability to work with and advise his clients' certified professional accountants or other tax return preparers concerning all aspects of federal estate, gift, and income tax returns. He does not ordinarily himself prepare such returns for his clients because it is almost always more efficient and economical for a full-time professional tax return preparer to do so in consultation with him.
Asset Protection Planning
Beyond the use of family limited liability entities, asset protection planning can involve, among other things, the use of trusts (including foreign and domestic asset protection trusts), the maximum feasible avoidance of liability for the actions of other parties, and the most carefully considered decisions concerning the forms of a client's accumulated wealth. By and large, asset protection planning, to be effective, must begin before a client's assets have become exposed to particular liabilities.
Mr. Sawyier's experience in bankruptcy law and creditors' rights (i.e., remedies) adds to his expertise in trusts and limited liability entities in enabling him to assist his clients for a reasonable fee to formulate and carry out their optimal asset protection plans.
Long-Term Health Care Insurance and Contracts
Long-term health care insurance can itself be an essential form of asset protection for many clients, but the greatest care must be taken in each case to obtain the best-suited policy.
The same holds true for long-term care contracts including all kinds of assisted-living arrangements: they can be either very beneficial or not depending upon the details.
With his extensive knowledge of contract law and network of contacts in these fields, Mr. Sawyier seeks to be of assistance to every interested client.
Medicaid Applications
As in the case of guardianships, the need for Medicaid applications on behalf of persons of any significant financial means ordinarily arises because of a failure to engage in adequate advance planning. However, for some, long-term care insurance is unavailable or unaffordable. For them, the only remaining estate planning option in order to ensure adequate long-term care for themselves or a loved one, is to qualify for Medicaid in a way that is the least disadvantageous, at least for other members of the applicant's family.
Mr. Sawyier seeks to advise and assist his clients as necessary in this area, too, utilizing the services of specialized, third-party Medicaid planning and placement firms in all ways that he considers best for his clients' interests.
