Cheat Sheet for Translating Legal Jargon

The Nordgren Law Office Legal Dictionary, Translating Legal Jargon, Legal books in the background

  Legal jargon can be complex and confusing on a good day, but when your marriage, finances, children, and home are in question, that confusion can add unnecessary stress on top of an already trying situation.    The legal field, like many other professions, has established specific meanings to terms that would not otherwise be … Read more

Divorce Crash Course: How to approach social media during the divorce process.

Divorce Crash Course: Two vehicles colliding with one another

NOTE: This article is meant in no way to provide legal Counsel.      The divorce process is one of the most emotionally straining events most people may endure in their lifetime. By nature, the process calls into jeopardy some of the most elemental parts of a person’s identity: Housing, jobs, children, or relationships. Everything … Read more

Grandparent’s Rights according to Illinois Law

Grandparent's Rights According to Illinois Law

By: Teresa Simmons   Grandparent’s Rights can be a tricky topic in the legal world. Grandparents play a pivotal role in the formative years of their grandchildren, and being denied visitation rights can have profound consequences, impacting both the child and the grandparent negatively. The presence of positive individuals in a child’s life fosters a … Read more

Probate Crash Course: How to keep your Head Above Water During The Illinois Probate Process

How to Keep Your Head above water during the Illinois Probate Process, a crash course

 

What is Probate?

Probate is the process in which a living person divides the estate of a deceased person, called a “decedent”. When a person passes away, and the person had over $100,000 in personal property, or owns a home, their estate must go through the probate process. The probate process can look differently depending on whether the decedent had properly completed estate planning documents.

What is “Personal Property?” In the legal world, property is given different designations depending on what it is. “Personal property” is anything that a person owns that is not real estate, while “real property” is used specifically to discuss ownership of real estate or land. If the property is easily moveable like a car, or may not have a physical manifestation, such as a bank account or stocks, the property is considered “personal.”

What if the decedent did not own real property, and their personal property is less than $100,000?

Estates that contain less than $100,000 in personal property, and do not contain real property, Illinois Courts allow for a representative to use a Small Estate Affidavit. A Small Estate Affidavit is a legal document noting the property owned by the decedent, the heirs of the decedent, and what percentage of the property each heir is entitled to. Because the Small Estate Affidavit is usually used when the decedent is intestate, the property will go to each heir in percentages, following Per Stirpes distribution.

So what is the downside?

Small Estate Affidavits seem like an amazing tool, and they are when it comes to after someone has died. Small Estate Affidavits are overall more cost effective, and take less time than Probate, so what’s the catch?

Generally speaking, Small Estate affidavits are seen as less legally binding by banks and financial entities, and those trying to use a small estate affidavit have found it hard to get any information regarding the decedent’s accounts or records. This can be particularly burdensome when funeral fees and costs come due. Furthermore, popularity in Small Estate Affidavits seem to be trending downwards. Because financial institutions have been known to ignore or even harass loved ones using Small Estate Affidavits, many people that would otherwise qualify for them opt to proceed with probate to avoid needless complications.

In addition to financial entities discounting Small Estate Affidavits, if there is any dispute regarding who should be allowed to distribute the decedent’s property arise in court, the Small Estate Affidavit becomes useless.

What if the decedent had a will, and I am the named executor?

If you are a named executor in the will of a person that recently passed away, there are a few things that will need to happen before you are able to divide up the estate. Banks and other financial institutions require that executors submit Letters of Office before they grant access to accounts, stocks, and bonds.

How Can I get Letters of Office?

Letters of Office are a legal instrument, granted by a judge, that prove that a person has the authority to act on behalf of a decedent’s estate. If you are a named executor of a will, and are seeking Letters of Office, there are a few things that must occur before you can receive them.

1. File the Will

The first step in being granted Letters of Office starts by filing the Decedent’s will in the county that either they died in, or where their property is held. Each County is different in their process, but many will require the original will with the person’s signature. It is important to note that most counties in the state of Illinois, including Cook, will retain the will after it is filed. Counties will provide an option to buy a “certified copy” of the will, which is a printed scan of the will, with the seal of the county. In many cases, a certified copy of the will is not needed, so it is best to ensure that you make a copy of the will prior to filing it.

2. File a Petition for Probate of Will and for Letters of Administration

Once the will is filed, the next step in being granted Letters of Administration is to open up a probate estate for the decedent, which is done by filing a Petition for Probate of Will and for Letters of Administration. The standard form for Cook County can be located by searching for document “CCP 0315A.” For filers outside of Cook County, Petitions for Letters of Administration will be found sufficient when they include the following information as required by statute:

a. The name, place of residence of the person upon death.
b. The date and place of death.
c. The date of the will and whether you believe it to be the valid last will and testament of the deceased person.
d. The approximate value of the testators real and personal property.
e. Names and post office addresses of all heirs to the estate whether they are minors or disabled.
f. The name and post office address of the person named as the Executor.
g. The name and address of any fiduciary, unless supervised administration is requested.

Once you have completed this step, you must them file it with the clerk’s office. To do this, you can either go to the clerk’s office in person to file, or search online to see if the clerk’s office closest to you offers digital e-filing options.

3. Provide notice to heirs

After you have successfully filed your petition and received a court date, you should provide notice to the heirs of the will that there is legal action pending. Once you are appointed as the executor of the estate, you are bound by Illinois statute to provide notice to heirs by mailing such notice to the home addresses listed on the petition no later than 14 days after appointment. If you do not have a home address for the heirs, you must publish your appointment in a qualifying newspaper for three consecutive weeks. For residents in Chicago, one qualifying newspaper for publication of such notices is the Chicago Daily Law Bulletin.

What if the decedent did not have a will, and does not qualify for a Small Estate Affidavit?

For estates that do not qualify for a Small Estate Affidavit, and do not have a will (commonly referred to as “intestate estates”), the person seeking to be appointed as the Administrator (or “Petitioner”) will still need Letters of Office. The process for getting Letters of Office for an intestate is more time intensive, and the division of property is highly regulated by state statute.

How do I get Letters of Office?

To get Letters of Office for an intestate estate, Illinois requires a Petition for Letters of Administration, Affidavit of heirship, Oath and Bond, Declinations of Office, and notice to all heirs of the estate, or a waiver of notice signed by all heirs of the estate. Many find these requirements to be daunting, but with the right understanding, they can be handled easily.

1. Petition for Letters of Administration

Like with estates that have a will (referred to as “testate” estates), an intestate estate is opened by filing a petition. In Cook County, the Petition for Letters of Administration can be found by searching the document “CCP 0302A.” The Petition for Letters of office include all requirements of a Petition for Probate of will, with the additional requirement that the person filing the document prove a relationship between themselves and the deceased person. This can be as short as a statement such as “I am the child of X” or as long as a paragraph depending on the complexity of the relationship.

2. Affidavit of Heirship

The Affidavit of Heirship is required to show the familial lines of the deceased person, and who may be subject to receive property due to their death. Illinois follows Per Stirpes division of property. For more information on how Per Stirpes division works, see our article here.

There are no definitive requirements for an affidavit of heirship, but it is suggested that the affidavit include information regarding the decedent’s marriages, children, siblings (including half siblings and adopted siblings), parents, aunts and uncles, and cousins.

In addition to the suggested inclusions, Illinois requires that the Affidavit of Heirship be signed by the Petitioner before a notary public.

3. Oath and Bond

The Oath and Bond form operates as a form of insurance. For intestate estates, the Court requires that you show a form of insurance in the event that an issue arises during the administration of the estate, and the estate has insufficient funds to properly fulfill its duties. An example of when this would arise is if the deceased person had substantial credit card debt which exceeds the amount held by the estate. The Cook County Oath and Bond form can be found by searching “CCP 0312.”

To properly submit the Oath and Bond, it must include a bond 1.5x the size of the estate (an estate of $200,000 would then need a bond of $300,000), signed by the Petitioner before a notary public, and signed by a surety company.

4. Declination of Office

For estates that have more than one heir, Illinois requires the heirs not petitioning to administer the estate to specifically decline to administer the estate. The Cook County Declination of Office form can be found by searching “CCP 0309.”

5. Notice, or Waiver of Notice 

In addition to Declinations of Office, estates with more than one heir are required to give sufficient notice to heirs of the estate. Illinois statute specifically requires that all heirs to the estate received a mailed copy of the Petition at least 30 days before the scheduled hearing on the Petition. At the hearing, Petitioners must provide proof that Notice was given at least 30 days before.

To avoid this 30 day delay, the Court also allows for Petitioners to file Waivers of Notice. Waivers of Notice are signed by the heirs specifically waiving their right to receive notice by mail. The Cook County Waiver of Notice form can be found by searching “CCP 0303.”

Issues that arise under the Intestate Probate Process

When estates do not contain wills, it is common for disputes between family members to arise. Questions as to who should administer the estate, and who should receive what can create lasting conflicts and animosity between family members. Families that have multiple people fighting to be named as the administrator can drag on for months, resulting in expensive court costs and attorney’s fees, and rarely result in a positive outcome. If you of a loved one currently do not have proper estate planning, please consider preparing estate planning documents in the future.

Is Online Divorce For You? How the Rise of DIY Divorce Software is Changing the Family Law Scene

Is online divorce for you? How the rise of DIY divorce software is changing the family law scene
Written by Teresa Simmons

 

Navigating divorces can be a daunting journey, marked by high costs, substantial time investment, and overall complexity. The pandemic prompted a shift in divorce court dynamics. It ushered in an era of virtual hearings and streamlined online protocols for submitting petitions and legal documents. This shift revealed how much easier it can be to navigate the divorce process in a virtual realm. In the present day, many couples are using online divorces to end their marriage. While certain online divorce platforms have existed since the early 2000s, their prominence surged in recent years. The surge in online divorces is associated with their compelling advantages: a user-friendly, cost-effective means of initiating divorce proceedings.

This article will delve into the viability of an online divorce option for your circumstances. It will provide an in-depth analysis of its advantages and disadvantages.

What is an Online Divorce?

Sometimes referred to as a DIY Divorce or Do it Yourself Divorce, an online divorce provides a swift and budget-friendly platform to draft your divorce papers while offering basic legal guidance. The typical expense of a divorce in the United States stands at $12,900 when engaging an attorney’s services. Meeting the criteria for an online divorce could potentially be the optimal method. It may help you avoid steep legal costs and the emotional and financial burdens associated with divorce proceedings.

With an abundance of more than one hundred companies offering online divorce services, options range from websites aiding you in independently preparing your divorce forms to platforms that provide attorney-reviewed papers along with limited legal assistance and counsel. The feasibility of an online divorce depends on your specific circumstances and the intricacy of your case.

Am I a Good Candidate for an Online Divorce?

Online divorces are most effective in cases of uncontested divorces. An uncontested divorce occurs when both parties reach a mutual agreement on all aspects of the divorce. This includes property division, spousal support, custody arrangements, child support, and other important term

Alternatively, online divorces may be the most suitable option for marriages of short duration without children, financial obligations, or shared assets. If you and your spouse can find common ground on pivotal divorce terms, initiating the preliminary stages of your online divorce becomes much simpler.

However, if you and your spouse are at odds concerning the divorce and cannot reach an agreement on the key issues, pursuing an online divorce is not a suitable route for you.

Furthermore, divorces involving substantial assets, intricate property arrangements, instances of spousal abuse, or your spouse’s resistance to the divorce will introduce significant hurdles that will likely make an online divorce impractical and what’s more, risky. It is crucial to evaluate your circumstances and determine whether an online divorce aligns with your story and needs. Setting up an initial consultation with a divorce attorney could provide further clarity. This can help you determine whether you are a suitable candidate for this approach. Many divorce attorneys offer complimentary or affordably priced initial consultations. This could provide you with a unique perspective in your decision-making process. In the end, the decision is entirely yours, and it’s essential that your choice fully caters to your need

Advantages of Opting for an Online Divorce

There are a variety of advantages linked to online divorces. They offer cost-effectiveness, time-saving potential, and enhanced clarity throughout the divorce proceedings.

  1. Cost-Effective Solution
    The expense of an online divorce varies based on the platform you select. While entirely free services may be rare, the cost of commencing an online divorce can start as low as $150. In contrast, the average hourly rate for attorneys hovers around $350, highlighting the possibility of significant cost reductions. The affordability of online divorces makes exploring this option a wise step.
  1. Time-Efficient Approach
    Certain online divorce processes require only a few hours to complete the initial questionnaire and preliminary paperwork. This renders all documents ready for filing within a mere two days. Online divorces empower you to manage the paperwork at your own pace. This avoids the need to wait for attorney communication or updates. You won’t have to worry about missing work and dealing with the inconvenience of arranging travel for court appearances and appointments at your lawyer’s office. Online divorces allow you the flexibility to complete your divorce papers on your personal timetable.
  2. Streamlined Process
    Furthermore, online divorces provide a simplified, step-by-step breakdown of the divorce journey. Typically, the process involves creating an account on your chosen platform and completing an initial questionnaire individually or collaboratively with your spouse. The next stage involves additional questionnaires covering your present circumstances and the mutual agreements you’ve reached with your spouse. Ultimately, the platform generates divorce forms tailored to your responses, ready for submission to the court.

Disadvantages of Opting for an Online Divorce

While an online divorce offers an economical and adaptable approach to divorce, certain drawbacks warrant consideration. Online divorces are not suited for contested disputes, and the extent of attorney involvement can vary depending on the platform chosen.

  1. Limitations of Online Divorces in Contested Divorce Cases
    In scenarios where your spouse resists paying spousal or child support or disputes a shared parenting schedule, having a lawyer might be crucial to ensure your rights are protected.

An online divorce might fall short if agreement remains elusive on specific divorce terms, potentially leaving your interests unheard. Rather than benefiting from the personalized guidance and representation of an attorney, you would be limited to prefabricated forms that might not address your concerns.

Resisting the cost of an attorney shouldn’t mean you have to sacrifice your rights. You have options, and mere cost should not dictate the pursuit of an online divorce or the avoidance of seeking professional legal advice.

  1. Online divorces don’t always offer professional guidance
    While online divorces allow flexibility, be aware that additional state-specific forms or paperwork might be required, obliging you to ensure meticulous compliance with court filing deadlines. Engaging reputable legal services assures timely and accurate filing of all paperwork in adherence to your state’s laws. Seeking a second opinion from a professional well-versed in divorce and family law is advisable.

Prioritize your right to legal representation, especially if you’re confused about the divorce process or your spouse remains unyielding in meeting your needs.

Navigating Online Divorce: Understanding the Process and Making Informed Choices

After weighing the advantages and disadvantages of an online divorce, it’s important to gain a comprehensive understanding of what you may be getting yourself into. First, acquaint yourself with your state’s laws to ensure strict adherence to any deadlines or filing requirements. The timeline for submitting specific documents varies by state, which means it’s essential that you have a clear grasp of any necessary steps to avoid potentially costly errors. If you have access to a family law attorney or can arrange an initial consultation, this avenue provides a reliable means to ensure your online divorce initiation proceeds smoothly.

Given the diverse variety of platforms offering online divorce services, finding the best online divorce services is crucial. Whether your preference leans toward a platform offering the best value for your investment, swift processing, or supplementary legal support, diligent research of your choices and reading customer reviews will provide insight into the platform’s functionality and its potential to assist you effectively

Finally, you need to sit down with your spouse and have a conversation to make sure you are both on the same page. You should gather all relevant financial documentation and engage in a comprehensive conversation with your spouse. Delve into the details of your financial matters and discuss your respective expectations for the divorce outcome. Having this conversation not only guarantees the availability of essential information but also preempts unforeseen issues that might arise in the future.

By meticulously addressing these factors, you can navigate the realm of online divorce more informed and better prepared for the journey ahead.

Conclusion

In conclusion, an online divorce could be the right path for you if your situation aligns with specific criteria. If you and your spouse are in agreement and seek an uncontested divorce, or if your marriage was brief without complexities like children, financial obligations, or shared assets, the option of an online divorce holds promise. This route offers significant benefits, such as cost-effectiveness and flexibility, making it an attractive choice.

However, it’s important to assess your circumstances carefully. If you and your spouse are unable to reach a consensus on essential divorce terms or if your divorce involves intricate financial and emotional aspects, an online divorce might not be the most suitable route. The decision of whether to pursue an online divorce rests entirely on your individual situation. While an online divorce might present cost savings, it’s crucial not to compromise the quality of your life or neglect your needs. It’s wise to explore this avenue by meeting with a family law attorney through an initial consultation. The attorney will provide a realistic perspective on your situation and equip you with a realistic understanding of what lies ahead in your impending divorce. Explore your options, research the process, and follow your intuition.

 

Originally posted to SAS for Women, and can be found at the link below:

Is an Online Divorce Really Viable?