Don't Let Estate Plan Problems Keep You From Moving On Up

Although more than a month has passed since his death on July 24th, actor Sherman Hemsley, most widely known for his role as George Jefferson on the television series The Jeffersons, remains unburied.  The actor’s body is being held in an El Paso, Texas funeral home until a Texas court rules on who will have the authority to decide upon the disposition of his remains.  At issue in the court proceeding:  a will, ostensibly signed by Mr. Hemsley, leaving his entire estate to his longtime female companion.  A man claiming to be Mr. Hemsley’s estranged brother has filed suit contesting the will and alleging that it is not valid.  Unfortunately, these allegations have been enough to delay both Mr. Hemsley’s burial and the distribution of his assets.

So what can you do to help ensure that your wishes for burial, cremation, or other disposition of your remains are carried out?  Under Illinois law, a statutory Power of Attorney for Healthcare (“POAH”) that is validly executed by the principal (the person granting the power to the agent) typically includes the power to decide upon the disposition of the principal’s remains.  This means that the agent named in the POAH is granted the specific power, in compliance with the Illinois Disposition of Remains Act (“DORA”), to determine the principal’s final resting place, and make binding decisions about organ donation, cremation, burial, or other options.  In the absence of a valid, statutory POAH or other written instrument that complies with DORA, the statute sets out a scheme of priority for persons authorized to make decisions concerning the decedent’s remains:  (1) the executor of the will or legal representative of the estate; (2) the surviving spouse; (3) the decedent’s sole surviving children or a majority of the decedent’s adult children; (4) the surviving parent(s) of the decedent; (5) the decedent’s next of kin; and (6) in certain cases, the state (or anyone else willing to assume legal and financial responsibility for the disposition of remains).

Keep in mind, though, that making valid arrangements for your final resting place is only one aspect of a thorough estate plan.  A comprehensive plan also provides for the management and distribution of your assets, both at your death and during any period in which you are incapacitated due to age, illness, injury, or anything else that affects your legal capacity to manage your affairs.  There are a number of documents through which you can accomplish this result – under llinois law, at the very least, you should have a valid will and powers of attorney for healthcare (“POAH”) and property (“POAP”).  In some circumstances, you may also wish to create a revocable or “living” trust.  Irrevocable Life Insurance Trusts (or “ILITs”) can also be a valuable tool in the estate planning toolkit when there are life insurance policies you wish to exclude from your taxable estate at death.

In next week’s article, we will take an in-depth look at the anatomy of a good estate plan.  We’ll explore the documents that make up a comprehensive plan, and consider how each element functions within that plan.  In the meantime, if you haven’t taken steps to plan for your assets and or your final resting place after your death, contact an attorney who can advise you on how best to plan for your specific situation.

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 Disclaimer: This article provides legal information of a general nature and is not intended as legal advice, nor does it create an attorney-client relationship with any person or group of persons.  Should you wish to obtain legal advice concerning your particular situation, contact an attorney.