Coyle Law of Lockport, Illinois Law Blog
Coyle Law of Lockport, Illinois Law Blog
The Powerball lottery jackpot is advertised as $1,400,000,000 but if (when!) you win, how much will you really see deposited into your bank account? First, let’s assume that you hold the only winning ticket (you have a about a 1 in 300 million chance). The advertised amount is what you would receive if you agree to take payments spread out over 30 years. If you opt to take the lump sum (which most financial advisers would recommend), you would receive a fairly decent deposit of $868 million – that’s a loss of 38% of the advertised jackpot.
After that, Uncle Sam will be ready to tax the lump sum amount as your regular income at the highest federal rate of 39.6%, leaving you with $524 million. If you live in Illinois, you will also need to pony up another 3.75% for Illinois income tax – for a net total of around $492 million. Bam, you just lost almost a billion dollars from the advertised jackpot.
Another factor to consider is gifting. If you decide to generously spread out your winnings to friends, family, neighbors, or your local attorney, any amount gifted may be subject to a federal gift tax of 40%. If you have an agreement to share prize money before the drawing, though (like an office pool), that would not result in gift tax.
So, when you’re deciding how much of your nest egg to invest in lottery tickets, don’t be fooled by the advertised jackpot – you could lose a billion dollars.
While our elected officials in Springfield have a reputation for not getting anything done, they did find the time to write and pass 200 new laws that will take effect come January 1. Here is a quick rundown of those which may be the most important (or maybe just the most interesting):
1. New Divorce Law
In what may be the most wide-reaching and important change for 2016, the statute governing divorce in Illinois has been rewritten. It has kept the same name – The Illinois Marriage and Dissolution of Marriage Act – but has been modified in ways both minor and major.
In the old version of the law, the party asking for a divorce had the option of providing a reason (adultery, mental cruelty, drug abuse, abandonment, etc.) or stating, simply, that there were irreconcilable differences between the parties (often called ‘no-fault divorce’). The new version of the law takes away the option of providing a reason and states that all divorces will proceed as if they were ‘no-fault’. This may seem important, but in practice, almost all divorce cases were filed under the ‘no-fault’ option, so this likely won’t change much for divorce attorneys or litigants.
The second noticeable change is in how the law states divorced parents are given decision-making authority over their children. The new law completely omits the words ‘custody’ and ‘visitation’ and instead states that the court is to determine and allocate ‘parental responsibility’ and ‘parental decision-making’. This is likely meant to foster a better environment for both parents to have active roles in children’s lives than under the old ‘custodial parent’ and ‘non-custodial parent’ terminology.
2. Locking Pill Bottles
Anyone filling a prescription for an opioid medication will now find that their pill bottle comes with a numerical code lock on the cap (similar to what you would see on a pad lock or bike lock).
3. Laws for Fido
There are several new laws taking effect meant to protect pets from abuse and neglect. It is now illegal to leave pets out in extreme weather and there are harsher penalties for those found guilty of abusing a pet in front of children. (Senate Bill 125 and House Bill 3231). Relatedly, another law now makes it legal for children and disabled adults who are victims of sexual abuse to have their service dog sit with them when testifying in court. (Senate Bill 1389)
4. Police tactics and body cams
Senate Bill 1304 prohibits police from using certain chokeholds and requires more training for police officers. It also establishes guidelines for the use of body cameras.
5. Pumpkin pie
The Illinois legislature may not have gotten a budget done yet but they did find time to make pumpkin pie the official state pie. (House Bill 208)
6. Immunity for underage drinkers calling 911
Anyone who calls 911 for someone needing medical help will not have to worry about facing prosecution if they were drinking underage.
7. Foreign Weeds
The Exotic Weed Act has been modified to now include a restriction on the buying, selling, or planting of bush honeysuckle, olive, salt cedar, poison hemlock, oriental bittersweet, teasel, knotweed, and giant hogweed. So, if you love any of those weeds, you’d better get them in the ground before January 1.
In many parts of the country it is uncommon to hire an attorney to represent you when buying or selling residential real estate (the Chicago area is one of the few places where it is customary to have an attorney). My opinion is that your real estate transaction is likely the single most financially significant event of your year (or decade) and the cost of an attorney to review that with you (in Chicago, the fees are usually $400-$600) will be nominal compared to the cost you could incur if there were any issues or mistakes made at your closing. So, in the interest of pulling back the curtain, here is a brief overview of what you can expect an attorney to do for you:
Reviewing the Contract
The first thing we do is review your real estate contract. We look to make sure that all the information is there that should be included. Most real estate contracts include an “Attorney Review” period where the attorneys for the buyer and seller can negotiate any changes to the contract they feel are necessary (with the exception of the purchase price). If there are any contingencies or unusual terms, we will go over that with the client to make sure they understand what the contract says and to see if they want anything changed. Once that is completed, the attorney’s job changes depending on whether they are representing a buyer or a seller.
When You’re a Buyer
Buyers need to be made aware of the different deadlines included in the contract. First, they usually have one week to have a home inspection done and to have the process started for securing a loan from their mortgage lender. If there is going to be a delay with either of those, the attorney would communicate that with the seller and get the deadlines extended. If there are any issues arising from the inspection that the buyer wants repaired or otherwise taken care of, the attorney would forward those requests and negotiate the response.
Once all issues with the inspection and loan are taken care of, we can schedule a closing. At the closing table, the attorney will be there and go over the tall stack of paperwork waiting for you. Most of the paperwork will be the documents sent over by your mortgage lender and they all need to be signed before your lender will release your mortgage funds. A lot of the forms are difficult to understand so it does help quite a bit to have an attorney there who has seen the form before and knows what to look for to make sure that the documents have been prepared correctly and to verify that the loan terms are what you were promised they would be (correct loan amount, interest rate, monthly payment, etc.).
After you have signed your mortgage documents, the attorney will then review the ‘title documents’ which are usually prepared by the title company and the seller’s attorney. These documents are the ones that will ensure you receive everything you are expecting and that you understand any limitations that may be a part of the property. If you are buying a detached residence or a townhouse, you should get a survey at closing that shows your property’s lot lines along with any easements, encroachments, and building lines. It is common to discover at the closing that the previous owners had a garage built over an easement or beyond a building line. If that is the case, there is the possibility that a utility company or your municipality will have that demolished at your expense. When discovered at closing, we can often request the seller provide you with additional title insurance that would cover the cost for demolition if that were to happen. Additionally, we will review the deed and title insurance policy to make sure that you are taking good title to your property in the manner that works best for you (joint tenants vs. tenants in common vs. tenants by the entirety).
When You’re a Seller
As you might expect, representing a seller is the inverse of representing a buyer. As a seller’s attorney, I will usually start by ordering a title insurance policy from one of the title insurance companies I am an agent for. Currently, I am an agent for four different companies and each one has their own benefits and weaknesses. Taking into consideration the location of your property, the type of property, and the purchase price, I will order from whichever company I think will provide the best price for the insurance and the best service for your type of transaction (clients often prefer a company with an office close to their property so they can avoid driving too far out of their way come closing day). We would also negotiate with the buyer’s attorney regarding any inspection issues, order a survey, and order any other type of inspection required by your contract.
When we receive the title report back, we contact the seller to let them know if there were any issues that were discovered (such as open mortgages that will need to be paid off at closing). Getting the title report back early can be critical if there are any unforeseen issues that need to be cleared – such as old mortgages that were refinanced but never had a release filed or where there is a deceased person on title and we need to obtain a death certificate.
For many sellers, we often prepare their title documents ahead of time and allow them to sign them before the closing so they can avoid sitting at the closing table for the hour or two it will take the buyers to review their loan documents. These documents would include the deed, bill of sale, title insurance documents, and other forms which we would prepare for you.
What Happens If I Don’t Use an Attorney?
If you still don’t think using an attorney would be necessary – you may be right! I admit that there are many closings where things go smoothly for everyone and the only service I provide is some extra explanation to the client of the meaning of some of the documents. In areas outside of Chicago, realtors and title companies independently provide the services that I’ve discussed above, so it must not be that big of a deal to not have an attorney, right? My response to that would be that, in most transactions, there are issues that are never caught or noticed by you but which an attorney would catch and have taken care of in the way that is most beneficial to you. One example of this is title fees – reviewing an invoice from your title company can be quite confusing as there is a laundry list of fees ranging from $1,800 to $3.00 and some of which are paid by the buyer and some by the seller. Some of these fees are mandated by law and others are required by the company and others are voluntary that the company assumes you want. An experienced real estate attorney knows which of those fees are not necessary for you and it is common that I am able to save a client more than the cost of my attorney’s fee just by having unneeded title fees removed. Additionally, there will be tax credits that you pay as a seller or receive as a buyer that need to be calculated as of the closing date. In some instances, there may be a discrepancy in how those credits should be calculated. When both sides have an attorney, they will negotiate that; but, if there is no attorney involved, the title company or realtor will calculate it however they decide (usually without even bringing the issue to the attention of either side).
Once you leave the closing table, the transaction is done. As a buyer, if you discover down the road that the seller never paid off a lien or that a shed was built on top of a municipal easement, you could be on the hook for those costs years after your closing. If you can’t locate the seller (or if the seller has passed away), you may have no recourse. If your attorney catches these issues at the table, though, it could be a simple fix that costs you nothing extra.
In families with a sick or elderly parent (or grandparent, aunt, uncle, cousin, etc.), it is common for one family member to bear most of the burden of taking care of that relative. Caring for an elderly parent can be extremely taxing, especially when the caregiver has their own family to tend to as well. I find it is quite rare, though, for the sick relative to have an estate plan in place that takes this into consideration (even when that caregiver is not being paid).
In some families, this does not lead to any issues or resentment because perhaps the caregiver never wanted any more recognition for their care or – in some cases – the family has all agreed to provide extra gifts from mom’s estate to the sibling that took the burden from the rest of the family. In many instances, though, there is some friction which can often go unaddressed as it is a touchy subject that can be difficult to bring up. In Illinois, there are two statutes to be aware of that can have a profound effect on the rights a caregiver may have in the estate of the cared-for relative.
First, the Illinois Probate Act provides that caregivers can file a “Statutory Custodial Claim” against the Estate of a deceased person if that caregiver meets some very specific criteria (755 ILCS 5/18-1.1):
In cases where that criteria is met, the amount of award is to be determined by the Probate judge who should take into consideration the emotional distress and the lost lifestyle and employment opportunities of the caregiver. The law also sets minimum award amounts that vary based on how disabled the person was when they were receiving care. The minimums range from $45,000 to $180,000.
This law can be very beneficial to a family member who meets the criteria above and who would otherwise receive no consideration for the care they provided. This is especially true with regard to estates that are subject to other claims (such as medical bills, credit card bills, or unpaid taxes) because Illinois considers a Statutory Custodial Claim a 1st Class Claim, meaning it is to be paid by the estate before almost all other debts or claims (755 ILCS 5/18-10).
The second law to be aware of is new as of 2015 and, in many ways, is the inverse of the law discussed above. The new section of the Probate Act – 755 ILCS 5/4-a – is titled “Presumptively Void Transfers” and deals with non-family caregivers who are left gifts in the estate plan of the person they cared for. Essentially, the law states that any will, trust, beneficiary designation, etc. that would leave a gift larger than $20,000 to a caregiver is presumed void and ineffective. This would only be the case if the transfer or document is challenged; but, if any such challenge occurs, it is the obligation of the caregiver to prove that the transfer was done of the person’s own free will and not due to fraud, duress, or undue influence. This is the opposite of most such challenges as courts will usually presume that any such transfer or document was a reflection of the deceased person’s wishes and the burden is generally on the person making the challenge to prove that the transfer was done inappropriately. Importantly, the law also states that if the caregiver is unable to prove that the transfer was done of the deceased person’s own free will, then the caregiver shall be responsible for all the attorney’s fees and court costs for both sides.
So, if you are a caregiver, are receiving care, or know someone to whom these situations apply, it is crucial that the estate plan wishes of the parties are carefully written out and overseen by an attorney who specializes in that area. It is a lot easier (and MUCH cheaper) to set things up correctly while mom or dad are still alive and have their faculties than waiting too long and finding out we can’t do what they would have wanted.
Today, March 2, 2015, the United State Supreme Court will hear oral arguments in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission. I am writing about it partly because my aunt, Colleen Coyle Mathis, is involved – as she was the chariwoman of the Arizona Independent Redistricting Commission – and because I think this is a really important case that is not getting as much attention as other cases being heard this session regarding Obamacare or gay marriage.
Some background: State legislatures throughout the country are usually in charge of drawing new voting district maps every ten years following the Census. As we know in Illinois, this can lead to some very strange-looking districts that usually serve the party in power of the state legislature at the time of the drawing of the maps. So, in Illinois, where Democrats have controlled the legislature since time immortal, you may find that a Democratic representative’s district that has become more conservative is suddenly redrawn to include a more liberal voting bloc and ensure that the incumbent representative has an easier path to re-election. Conversely, a ‘competitive’ district that has equal numbers of Republican and Democratic voters may be redrawn so that the district now includes a few extra Democratic voters thus making the district much more likely to tilt one way.
In Arizona, there was a similar issue – except in favor of Republicans. Surprisingly, Arizona voters are not as conservative as one may think – voter registration is roughly 35% Republican, 30% Democrat and 35% Independent. Despite that, Republican lawmakers there were able to draw districts so the Arizona congressional delegation and state legislature was always heavily in favor of Republicans. Here in Illinois, we have a Republican Senator and a Republican Governor – so when the state is not carved into jigsaw districts, we look pretty ‘competitive’. But, the Illinois House currently is over 60% Democrat. Of course, Illinois Democrats drew those districts following the 2010 census. In Arizona, voters passed a referendum in 2000, giving the power to draw legislative districts to an independent panel which would be made up of two Republican appointees, two Democratic appointees, and one independent appointee. This committee didn’t have to do any real heavy lifting until 2010 when new maps were to be drawn. Arizona has nine congressional districts. When the Committee was finished, they had drawn a map with four ‘safe Republican’ districts, two ‘safe Democratic’ districts and three ‘toss-up’ districts. This was not good enough for the Arizona Republicans in power and so the Republican governor, Jan Brewer, backed by Republicans in the Arizona Senate, fired the independent chairwoman (my Aunt Colleen), without giving any reason. (So, my aunt was basically shit-canned by the Arizona governor and her name dragged through the mud because the maps gave only four of the nine seats to Republicans and was going to make them work for the three ‘toss-ups’. I may be biased but Jan Brewer is a shitheel.) The Arizona Supreme Court unanimously overturned the governor, needing less than two hours to deliberate, finding she had no basis or authority for taking such action and reinstated the chairwoman.
So, having failed to toss out the Commission’s work that way, the state has decided that the Independent Commission, which was passed by voter referendum, is unconstitutional and has challenged its authority to the US Supreme Court. If the Supreme Court agrees with Arizona’s argument, then the Arizona Commission, as well as independent commissions in California and a dozen other states could be deemed unconstitutional and those state legislatures given full reign to draw their maps again.
In the congressional elections of 2012 and 2014, Arizona had some of the closest races in the nation; so, it appears voters there were given a real choice. A choice they asked for by passing a referendum creating an Independent Commission. So, the question is “do voters have the power to take control of drawing congressional districts away from state legislatures?” I sure hope they do and I would welcome a similar commission in Illinois. You may not hear as much about this case as you do other cases, but I think this one could effect a lot more people in a more direct way than a ruling on gay marriage. The Court will get to decide: Should voters be able to choose their representative or should representatives be able to choose their voters?
As chronicled throughout Chicago and national media, there is a fight brewing between the family of Ernie Banks and his caretaker who has filed a Will presumably signed by Banks that leaves the bulk of his estate to her. There are some fascinating wrinkles to this case, though, as Ernie was apparently in the middle of divorce proceedings with his estranged wife, who lives in California and it appears that the will was signed some time in the last three months of Ernie’s life.
I have not viewed the will (which is filed with the Cook County court and is public record) but, the news accounts I’ve read say that the will named the caretaker as executor and the main beneficiary. If this is true, and if Ernie did not have the bulk of his assets set up in trust, that is shocking to me. A trust is a useful estate planning tool for just about anyone, but especially for people who (a) have family strife; (b) want to leave assets to people who are not their ‘natural heirs’; (c) have property in multiple states; or (d) want their estate handled in a private manner.
By having such gifts flow through a will, it opens up so many issues that have to be hashed out in court and in the public eye. Most of my clients, even those with assets under $300,000, set up trusts to avoid probate and allow for a smoother transfer to their preferred beneficiaries.
Interestingly, a new Illinois law became effective on January 1 of this year which states that wills which provide more than $20,000 for a caregiver of the person signing the will are presumed to be invalid. The caregiver has to show, by clear and convincing evidence, that the gift was not the result of fraud, duress, or undue influence. That is a very large hurdle and is very different than we normally see in these cases (usually, you only have to prove that the deceased person’s signature is on the document). If the caregiver is not able to prove this, they receive nothing under the will and the caregiver is required to pay the attorney’s fees and court costs of the family that brings the challenge. So, if the filed will is truly Ernie’s wish, then let’s hope that he used a very thorough attorney who very carefully recorded all of his meetings with Ernie to present at trial. If the caretaker was improperly influencing Ernie, though, it is my guess that she will have a very hard time succeeding in court.
These squabbles and fights are never pretty and no one comes out looking good when they are over; however, I am always amazed at how many high net-worth celebrities, athletes, and entertainers have failed to do even simple estate planning that can avoid so many of these problems for their loved ones. By all accounts, Ernie Banks was the perpetual optimist and surely he never wanted to see his loved ones fighting over his legacy. Here’s hoping everyone involved is able to ask themselves “What Would Ernie Do” and have the matter settled fairly and amicably before catching a game (or two) on the North Side.