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10 Tips from a Veteran Estate-Planning Lawyer

In the September ISBA Trusts & Estates Section newsletter, Chicago lawyer Michael H. Erde shares 20 nuggets of wisdom he's gleaned in his 48 years of practice. Here are 10.

1. Use blue ink. "Have your clients sign in blue ink so judges and attorneys know which are the originals," Erde advises.

2. Mention an heir you're disinheriting. "Always mention an heir who is disinherited in a will or trust," Erde writes. But don't leave him or her a dollar, "because the executor/trustee will never get a receipt."

3. Get a conflict waiver. If you're drafting a joint trust for husband and wife, "be sure to obtain a conflict waiver for representing both."

4. Specifically give the executor access to safety deposit boxes. "Some financial organizations will not allow a trustee or agent into a safety deposit box unless there is specific language in the Trust or Power of Attorney to allow the trustee or the agent the authority to do so," Erde writes.

5. Make will and trust contesters pay legal fees. "Have a no-contest clause that causes the person contesting his or her share in a trust to pay all legal fees," Erde writes. This will make people think twice before contesting.

6. Advise clients to give guns only to FOID-card holders.

7. Give direction to HCPOA agents. "The agent under the power of attorney for health care and the doctor of the principal need some direction as to health matters," Erde writes. "This should be done with a DNR (do not resuscitate) [order], a living will, a HIPAA (Health Insurance Portability and Accountability Act) release form," and requests for cremation or body donation.

8. Give personal property with a trust, not a will. "Do not put many personal property matters in the will as specific bequests," Erde suggests. "[T]he will becomes a public matter which anyone can read," while a trust is private.

9. Give the trustee power to keep some assets uninvested. Why? "[S]o that bills can be paid quickly without cashing in a CD, etc."

10. Draft special needs trust language with government benefits in mind. "Supplementary Needs (special needs) language should be carefully drafted" so as not to jeopardize a legatee's Medicaid or other government benefits, Erde writes.

Read 10 more tips in Erde's newsletter article.

Posted on November 8, 2017 by Mark S. Mathewson
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