Author: marcsherman

Marc is the President and Founder of Marc D Sherman & Colleagues PC in Lincolnwood, IL. For over 38 years, Marc has represented individuals and businesses in a variety of Estate Planning, Probate, Business transactional and civil litigation matters.
Estates Planning And Probate, Real Estate, Real Estate Sales and Purchases

Joint Tenancy Is Not Always The Best Estate Plan

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If I had a dollar for every time someone told me that they don’t need to worry about a Will or a Living Trust because they have made their children joint owners of their home or other assets, it would be a tidy sum! 

While it often makes sense for spouses to hold their marital home in joint tenancy, naming your children as joint owners of your assets is almost always asking for trouble – in many ways.

“Oops, I didn’t realize that I was giving my child’s creditors access to my money or property.”

That’s right. When you add someone to your real estate title or to your account or other asset as a joint owner, you are giving that person a present interest in the property. This means that the person, for this example your child, is immediately entitled to their interest in the asset. Your child will not likely take what is not at that time intended for them to have. But if the child is sued, or has to file a bankruptcy, or has a tax lien, the law says that the creditor or bankruptcy trustee or taxman CAN get at the child’s interest in your property. And there is little that you can do at that point to stop them.

It doesn’t matter how highly you regard your child and how very responsible you believe them to be. All you have to do is consider that the child may have an uninsured or underinsured motorist claim, or sign a personal guaranty of a business debt that goes bad, or fail to pay their taxes, or a myriad of other situations. 

A better option? Discuss with your Estate Planning Attorney if one of the following is a better fit for you: Naming your child your power of attorney, so that they can take actions for you in the event that you cannot do so yourself; add the child as a payable-on-death beneficiary to your account; use a Transfer On Death Instrument to pass real property interests to your child or other beneficiaries; or, put your assets into a living, revocable trust and make the child the successor trustee.

Good intentions just won’t cut it. There is no “good intention” exception under the law when a child’s creditor comes knocking at your door to collect the child’s interest in your property.

And if that isn’t scary, consider that even if the child’s creditor doesn’t come after your asset, the use of the wrong method to pass your property could result in a serious tax hit. That’s right. Ask your accountant. They will tell you that there are certain advantages of passing property via correctly created estate planning tools, and that the lifetime transfer to a child of a joint ownership interest in your property may limit or destroy these positive tax attributes.

The team at Marc D Sherman & Colleagues PC is available for your questions. Reach out to set up a consultation.

General Litigation

What We Will Watch In 2024

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It’s remarkable that we are ready to talk about Spring (and feeling Spring-like weather in Chicago) already! Besides working at our recent personal resolutions, here’s what the attorneys will be watching in 2024:

Illinois Paid Leave for All Workers Act

Many Illinois Employers will become aware that their employees will be entitled to 40 hours of paid time off for any reason as the Illinois Paid Leave for All Workers Act makes a new change to local law. Only seven days notice to the Employer, in most instances, is required. Employers are unable to require or ask the employee to find a replacement to work for them if time off is requested, and Employers may not discriminate against an employee who takes time off, as for example by reducing the employee’s hours or by limiting opportunities for advancement.

In many instances, employers with current paid leave policies will only need to tweak their existing policies.

Vaping Now Subject To Smoking-Related Restrictions

Illinois has expanded the laws to keep public spaces smoke free by making the same prohibition applicable to cigarettes in public places and within 15 fee of building entrances applicable to the use of electronic cigarettes, or vapes, as well.

Illinois Freelance Worker Protection Act (FWPA)

Almost everyone hired or retained as an independent contractor in Illinois for compensation of at least $500 will have increased rights. Beginning in July 2024, hiring or retaining a freelance worker will require that: (1) The agreement for work must be memorialized in a written contract; (2) Payment to a freelance worker is required within 30 days following completion of the services or product; and (3) Companies or contracted entities cannot engage in any discriminatory, retaliatory, or otherwise harassing behavior toward freelance workers.

Importantly, under the law a freelance worker does NOT include someone hired to perform construction services.

Aggrieved persons may seek relief in Illinois state courts or by filing a claim with the Illinois Department of Labor.

Illinois Personnel Records Review Act Amendment

Beginning January 2024, the Illinois Personnel Records Review Act (IPRRA) amendment is making it easier for employees to obtain copies of their personnel records. Employers must email or mail a copy of the employee’s records to the employee upon their written request, without consideration whether the employee is able to inspect the records in person prior to receiving a copy. Employers can still charge for any actual cost of copying the requested materials.

Illinois Transportation Benefits Program Act

The Illinois Transportation Benefits Program Act, beginning January 2024, has added a benefit for employees working for employers with 50 or more employees in Chicago or other specified nearby locations, and that are at an address that is located within a mile of fixed-route transit service. The Employers must now allow employees to use pre-tax dollars for the purchase of a transit pass through payroll deductions. The benefit must be offered to all employees, beginning on the employees’ first full pay period after 120 days of employment. Searchable maps should be available on-line from the Regional Transportation Authority, showing addresses located within one mile of fixed-route transit service. 

The Electronic Vehicle Charging Act

New single-family homes and newly constructed or renovated multi-unit residential buildings that have parking spaces will have to provide at least one electric vehicle-capable parking space for each residential unit. The law does not require developers or builders to install or run wire or cable for such charging stations, but requires them to construct buildings in a such a way as to allow for the installation of charging stations.

Illinois Landlord And Tenant Act Change

Effective January 2024, it will be a violation of the Consumer Fraud And Deceptive Practices Act for any residential landlord to require a tenant or prospective tenant to remit any amount due to the landlord by means of an electronic funds transfer, including, but not limited to, an electronic funds transfer system that automatically transfers funds on a regular, periodic, and recurring basis.

Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act Amendments

Effective January 2024, all estate-planning documents must be able to be prepared electronically. Previously, only wills were included. A nontestamentary estate planning document or a signature on a nontestamentary estate planning document may not be denied legal effect or enforceability solely because it is in electronic form. 

“Nontestamentary estate planning document” means a record relating to estate planning that is readable as text at the time of signing and is not a will or contained in a will. These include documents that create, exercise, modify, release, or revoke: a trust instrument or a trust power that under the terms of the trust requires a signed record; a certification of a trust under Section 1013 of the Illinois Trust Code; a durable power of attorney; (5) an agent’s certification under the Illinois Power of Attorney Act of the validity of a power of attorney and the agent’s authority; an advance directive, including a health care power of attorney, directive to physicians, natural death statement, living will, and medical or physician order for life-sustaining treatment; and any other record intended to carry out an individual’s intent regarding property or health care while incapacitated or on death (but not a deed of real property or a certificate of title for a vehicle, boat or the like).

Estate and Probate

Four Common Mistakes Young Parents Make By Avoiding Estate Planning

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Reliable public polls continue to confirm that less than 20% of young adults under the age of 30 have made a Will. The percentage makes some sense, since this age group is likely to just be starting their careers and may not yet have considered having children. 

More concerning? The percentage of young adults between 30 and 45 years of age who have created a Will is not significantly higher. Only about a third of this important age group has considered preparing a Will. And, of course, this is the age when committing to a long-term relationship, starting a family, purchasing a first home or condo, and inheriting assets from parents or grandparents is more likely.

Mistake #1:     I don’t need a Will or other Estate Planning documents.

Without a Last Will And Testament, the State directs how your property is passed on when you pass on. Accounts and assets that have a beneficiary designation will hopefully go as you have planned. But in all other cases, if you live in Illinois and you are unmarried and have no children, your property will go to one or both of your parents if they survive you (even if they don’t need your money and property). If your parents do not survive you, your property will most likely be divided between your siblings (and how many of us probably do not want ALL of our brothers and sisters to inherit our money and property?).

The point is, you can decide how and even when you want those who are important to you to receive your money and property if you depart this life. Sure, you can have a beneficiary on your accounts and take other steps, but there is no reason not to review this with an attorney to confirm that your expectations will be met.

Mistake #2:     This is only for those who have a lot of money.

The value of your personal assets is not the only good reason to talk to your Lawyer (see Mistake #1). The Estate Planning Lawyer can help you to be sure that other important materials are prepared for you: 

A Power of Attorney (POA) for Healthcare is important, so that you can be sure that the person YOU want to be making healthcare and medical decisions for you is able to act on your behalf, if necessary. Without a POA for Healthcare purposes, it is often necessary for a court to appoint a guardian to act for you, even in temporary situations when you cannot direct your physicians and other healthcare professionals on your own. Going to court for a guardianship is costly.

A POA for financial and property matters is equally important. This is how you select an agent who will assist you by making decisions and handling a multitude of matters for you, when you cannot do so. File a tax return, communicate with your employer, access bank and other accounts, pay your bills, and more. 

They don’t teach you this in school. But they should!

Mistake #3:     I can take care of this later.

This is one area that you don’t want to put off. Can’t take off work? Find an attorney who will meet with you on Zoom or in person in the evening, or early morning, or on a weekend. You don’t want to be hurrying up to see the attorney when there is an emergency. Your options and planning, if necessary, can be tougher or more limited. 

Mistake #4:     Lawyers are too expensive; I can’t afford to do this.

You can’t afford not to. 

What is the price that you put on having your property and money given to someone that YOU didn’t choose? Should you take the chance that there must be a court petition to appoint a guardian for you in the event that you are unable to make healthcare or financial decisions on your own (which usually costs more than what the attorneys charge for for a Will and Powers of Attorney preparation)?

Having a simple Will, Powers of Attorney and getting solid direction concerning related Estate Planning considerations will usually cost far less than you think. 

And, please, avoid the late night commercials offering to have you prepare a Will for $100 with a few keystrokes. There are a multitude of considerations that your attorney is able to discuss with you, that the on-line Will creators often miss. 

The team at Marc D. Sherman & Colleagues, P.C. is available to speak with you, discuss your needs and arrange a reasonable fee structure for you.

Business Entities, Contracts, Corporations, Limited Liability Company (LLC), Partnerships

How You Draft Your Business Contracts Is Important; Speak With Your Attorney

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A new decision from the Illinois Appellate Court reminds both attorneys and clients alike that attention to all aspects of business contract drafting should be a priority.

In the case of Nord v. Residential Alternatives of Illinois, Inc., 2023 IL App (4th) 220669, published on November 3, 2023, the Court was presented with a case asserting negligent nursing home care against Manor Court of Freeport Illinois. Naomi, a former resident of the nursing home passed away, and her Executor sought damages for the nursing home’s alleged treatment that the Executor insisted was the cause of or a contributing factor in Naomi’s death.

Manor Court moved to dismiss the case, directing the Judge’s attention to an arbitration agreement in the Manor Court contract materials. Businesses with potentially significant exposure to lawsuits will frequently include arbitration clauses in their contracts. These clauses require that claims be brought by disgruntled clients in an arbitration setting that is often less public and sometimes more favorable than state or federal court. There is a significant body of law outlining when and how those arbitration clauses can be enforced.

Considering Manor Court’s motion, the trial court held that the arbitration clause was unfair and unconscionable because it was buried in some 27 pages of documents included with the Manor Court resident admission materials. Also, reviewing the agreement to arbitrate, the court found that its terms essentially shifted all of the costs (potentially thousands of dollars) of the arbitration expenses to the resident. The trial court denied Manor Court’s motion to dismiss.

When the nursing home appealed, the Illinois Appellate Court considered another important aspect of the Resident Admission Agreement: Naomi’s Executor argued that all of the language of the resident contract should be read together, and here the agreement stated that the “term” of the contract terminates on the day that the resident is discharged from the facility. As a result, the resident contract, including the arbitration provision, terminated on the date of the resident’s death. The arbitration clause, Naomi’s Executor urged, was no longer enforceable. The Appellate Court agreed and the Court permitted the claim by Naomi’s Estate to continue in the Illinois court.

What should attorneys and business owners take away from the Court’s decision? 

Choose the language of your contracts carefully. The Appellate Court pointed to the fact that the arbitration clause did not state that it applied to claims filed after the termination of the resident contract. The Manor Court nursing home and its attorneys could have clarified the concept of termination, the definition of the “term” of the contract, and what provisions were intended by the parties to survive the conclusion of the contract — all important considerations that could have significant impact upon the enforcement of the contract. Eyes on the contract language can support the client’s enforcement of the contract later, both in and out of court.If you are concerned about the enforceability of your contracts, or are preparing for new or revised agreements for your business, Marc D. Sherman & Colleagues P.C. can help.

Estate and Probate, Estates Planning And Probate

Can I Record My Will By Video?

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With near universal access to social media and online connectivity, younger clients in particular frequently ask if they can make a Last Will And Testament by video. While this seems like a reasonable approach, Illinois law does not recognize a video Will as an enforceable tool for estate planning.

To be sure, a video or other recording of your wishes may be thoughtful for your family or friends. It may even help to be descriptive of the expressions stated in your Will. But Illinois law requires that to be enforceable a Last Will and Testament should be memorialized in a written or typed document. And your Will must be signed by you in the presence of two witnesses who also sign the Will and state their opinion that at the time of signing they believe that you are of sound mind and memory.

If your Will is prepared in a document, as required in Illinois, it is now possible however for the Will to be executed and witnesses remotely by electronic means. The Illinois Electronic Wills And Remote Witnesses Act recognizes the validity of an electronic Will that is executed by the Will’s maker (the testator) or executed on the testator’s behalf in the testator’s presence and at the testator’s direction, provided that the Will is also attested to in the testator’s presence by 2 or more credible witnesses.

Specific restrictions and requirements apply. Talk with your attorney about available options and the other important considerations that you should review.