GUARDIANSHIP

Guardianship of an adult is when the judge chooses a person, at least 18 years or older, to take care of another with an impairing disability. Guardianship is needed when a person is unable to make and communicate personal care decisions or manage their own finances due to a mental, physical, or developmental disability.

There are basically 2 types of guardianship of adults:

1. Guardianship of the Person, which is naming a person to have control over the health and welfare of the disabled person.

2. Guardianship of the Estate, which is naming a person to have control over the finances of the disable person.

To become a guardian, a person must be at least 18 years old, a U.S. resident, have sound mind, not be legally disabled, and not have a felony conviction that involved harm or threat to a child.

The steps to obtain Guardianship include:

1. Filing the Petition in the court, including a physician's report describing the person's physical and mental capacity, to determine the kind of guardianship needed.

2. The alleged disabled person must be served with summons and a copy of the petition.

3. Usually the court will appoint an attorney to serve as the guardian ad litem, also known as the GAL, to act as the "eyes and ears" of the court, and advocate for the best interest of the alleged disabled person.

4. At the hearing, the GAL reports to the court, the condition of the alleged disabled person and may recommend the type of guardianship needed.

5. The court reviews all the information presented, and either enters a limited or plenary guardianship order or finds that no guardianship is warranted. If guardianship is granted, then the letters of office are issued. The letters of office is a document which gives the appointed guardian the authority to speak to third parties on behalf of the disabled person.

6. Finally, Guardians are then responsible for the disabled person and must periodically report to the court about their care and welfare.

Guardianship can be costly and complicated. If you need an attorney to handle your guardianship matter, please call The Evans Williams Law Group and schedule a consultation.

EVICTION

Let me tell you a little bit about the eviction process in Illinois. First, the landlord must serve the tenant with a 5 day, 10 day, or 30 day notice. A 5 day notice is for non-payment of rent, 10 day notice is to cure violations, and the 30 day notice is to give the tenant notice that they must leave at the end of the 30 day period.

If the tenant doesn’t pay the amount due, cure the violations, or the time to leave has expired, a lawsuit in forcible entry and detainer may be filed with the Circuit Court. The landlord must provide for service of process on the tenant and all unknown occupants.

Service of process must first be attempted by the sheriff. In the event the Sheriff fails to obtain service on the tenant(s), the next step is to hire a “special process server”. In the event the sheriff couldn’t serve the tenant, and the special process server is not successful, the landlord must make a diligent attempt to locate the tenant. If they fail, the landlord can opt for service by an alternate means known as the Sheriff’s Posting Notice. Service by posting only affords the landlord to obtain an order for possession of the property but not a money judgment against the tenant.

On the court date, the tenant must stand ready for trial, or may be given a continuance to obtain counsel. The eviction hearing can be complicated, but once a landlord obtains an order for possession against a tenant and the tenant remains in the property past the date possession is to be turned over, the landlord may bring the order to the Sheriff who will then remove the tenant from the property. The landlord should be present.

The cost to evict and the process to evict can be surprising. You want to be sure that you are doing it right. If you require eviction assistance, call The Evans Williams Law Group to schedule a consultation. We look forward to working with you.

ESTATE PLANNING

Estate planning is the process to plan for certain death and the possibility of mental incapacity. There are many tools that can be used to develop your estate plan. I will very briefly describe six of them.

First, is the Transfer on Death Deed. This deed allows the property owner to designate a beneficiary or beneficiaries, who will receive the property upon the death of the owner.

Second, is the Testamentary Will. It allows the person who drafted the will to transfer their estate upon their death, select an Executor, and appoint a Guardian for minor children.

Third, is a Land Trust. The land trust company serves as trustee to hold the recorded title to real estate while you retain all rights of ownership as the beneficiary. Although there are annual fees with the land trust, when you pass away, you seamlessly transfer ownership to the person or people you name as successor beneficiaries, without having your estate go through probate.

The fourth estate planning tool is a Revocable Living Trust. This trust is like a land trust, but you are your own trustee, there are no annual fees, it’s more flexible, and it can hold real estate and personal property. You can name your trust as the beneficiary on investments, bank accounts and life insurance policies so that you can dictate when the beneficiary receives the money, and the purposes for which the money can be used.

Unlike the first four tools I just talked about that transfer property upon your death, the fifth tool is to be used while you are alive. This tool is called a Power of Attorney for Health Care. It allows you to designate someone to make medical decisions for you should you be unable to make them yourself. It also allows you to dictate your life sustaining treatment wishes.

The sixth tool, just like the fifth, is to be used while you are alive. It is called a Property Power of Attorney. It allows you to designate someone to make important business decisions on your behalf, like communicating with your bank, the social security administration and other agencies, and creditors.

If you have people or organizations in your life that you care about, have worked hard for what you have and want it distributed per your instruction, and you desire to leave a legacy and help your loved ones avoid drama, call The Evans Williams Law Group to schedule a consultation to discuss your estate plan.

DIVORCE

Divorce in Illinois is complex. The considerations include:

Whether to get a divorce, where the minor children should live, if any, and the associated parenting plan, how much child support should be paid, how much college contribution should be paid and how it is should be allocated, how property should be divided, who should pay certain debts, and whether maintenance should be paid.

A divorce can be uncontested or contested. An uncontested divorce is when both spouses agree on all of these issues. If that is the case, a Marital Settlement agreement can be drafted, attached to the Judgment for Dissolution. If they have children, the parties must attend a mandatory parenting class, and then the divorce can be entered. On the other hand, a contested divorce is when the spouses do not agree on any one of the considerations previously mentioned. If that is the case, a potentially long and costly divorce process begins.

If the parties have children, they will be ordered to attend the mandatory parenting class. In addition, if they can’t agree on the child related issues, the court will order the parties to attend mediation to try to develop a parenting plan. If they can’t agree on a parenting plan, a Guardian Ad Litem or Child Representative is appointed to help the judge determine what is in the best of the children.

Divorcing spouses will also have to participate in the discovery process. Discovery is when the assets and liabilities of the parties are identified.

After discovery, we try to settle the matter. If the parties don’t agree to a settlement, hearings on interim issues occur. Interim hearings can happen on matters like child support, parenting time, maintenance, and anything else that needs to be addressed sooner rather than later.

After the interim hearings, the court may set a pretrial. A pretrial is when the court reviews the desires of the parties and recommends a way to settle the case. If the parties agree with the settlement, the settlement agreement is drafted, attached to the judgment, and the parties can be divorced. If not, a trial is scheduled.

There is no way to know exactly how long it will take to get a divorce. The length of time depends on many things. If both spouses can agree on how to settle issues in the divorce case, the process will be shorter. If not, the divorce process will take much longer.

I can tell you that divorce law can be one of the most confusing, stressful, and costly areas of the law; you should choose your representation wisely. I am a family law mediator, collaborative law attorney, litigator and I practice transactional law. My attorneys and I have the ability and temperament to navigate you through the changing face of divorce law, and we will work with you to educate you on the law, inform you of the process involved, and explain your options. If you need assistance with your divorce matter, call The Evans Williams Law Group to schedule a consultation.

DECEDENT ESTATES

The Illinois probate process is a court-supervised legal procedure that is sometimes (but not always) required after someone dies. Its purpose is to clarify who inherits the deceased person’s property and to make sure valid debts and taxes are paid. Probate is handled by the deceased person’s executor, if they had a will, or the court appointed administrator if they didn’t have a will. Either way, this person is called the Representative and they must:

• prove in court that a deceased person's will is valid if applicable

• identify and inventory the deceased person's assets

• have those assets appraised

• pay debts and taxes, and

• distribute the remaining property as directed by the will, or if there's no will, as Illinois state law directs.

This can be a long expensive process. It can take 6 months to a little over a year or longer.

Whether or not a formal probate proceeding is required depends on what assets the deceased person owned, and how he or she held title to them. Estate Planning is an important factor which could greatly help in streamlining the probate process.

If there was proper estate planning, many assets do not need to go through probate, including:

• assets held in trust

• assets owned in joint tenancy or tenancy by the entirety

• assets that have a beneficiary named

• real estate subject to an Illinois transfer-on-death deed

• assets that can be distributed through a small estate affidavit

For more information on how to handle your loved one’s estate, please call The Evans Williams Law Group to schedule a consultation. We look forward to working with you.

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