Unraveling the Windsor Knot
Last week’s lengthy post examined from a broad perspective the United States v. Windsor case as a whole regarding what it did and did not do for same-sex marriage in the U.S. This week’s post is the first in a series of closer examinations on the specific issues and case law involved in this “landmark” Opinion. Though, the phrase “earth-shattering” may be more appropriate. In this first more narrow perspective, we’ll start with the Court’s question on whether it should have heard the case at all, particularly the issue of Article III jurisdiction. Article III of the U.S. Constitution mandates that courts can only hear “cases” or “controversies” and case law adds a few other requirements. So let’s consider how the question of Article III jurisdiction came into play and how it was resolved. Controversies may seem readily apparent simply because one party is on one side of the “v,” for “versus,” and another party is on the other side, e.g., United States Versus Windsor. Obviously, the U.S. and Windsor disagreed. But did they? Those who say no genuine controversy existed based their argument on the fact that the Department of Justice refused to defend DOMA’s Section 3 because the President considered Section 3 unconstitutional. Can the President do that? Yes, the President can and the United States Supreme Court agreed with the Constitutional scholar who is also the President of the United States of America: Section 3 of DOMA is unconstitutional. BUT, the sticky wicket in this case was that the Executive typically takes this type of position when the situation is adversarial, i.e., when a lower court disagrees. In Windsor, the lower court agreed. So just how was there was a “controversy”? Well, the Executive may have refused to defend Section 3, but it stated that it would continue to enforce it. A la, we have controversy…maybe… The Supreme Court used the case, Hein v. Freedom From Religion Foundation, as its starting point. In Hein, taxpayers sued the government for using money in faith-based programs initiated by former President Bush. The Court determined that the taxpayers lacked standing and thus couldn’t sue and reversed the appellate court’s ruling. A fundamental requirement for Article III controversies is standing, which is met when “a plaintiff [alleges] personal injury” that can be reasonably liked back to the defendant’s illegal action or actions and the relief sought by the plaintiff can probably be provided. Here, there was no doubt that Edie suffered injury – more than $360,000 worth – and the U.S. wasn’t going to enforce the IRS’s refusal to pay the refund based on DOMA’s Section 3. So, though the lower court may have ordered the IRS to pay, congressional law told the IRS not to refund the payment. The Court probably could have stopped here, because it could have remanded the case back down to the lower court with the admonition, with which Justice Scalia would have agreed, that Congress already spoke. But the Court ventured on, using INS v. Chadha to find controversy in the case past the issue of remand. In Chadha, a person who overstayed their visa was ordered by the INS (now known as USCIS) to leave the U.S. That person appealed to the Attorney General of the U.S., who granted the relief. However, Congress had the authority to veto the U.S. Attorney General and did so. So, like Windsor, Chadha was a case where the Executive sided with one plaintiff and another government body – this time the House – disagreed. The Court in Chadha ruled that a controversy existed despite the agreement because there was “concrete adverseness\” about the issue and there was adequate Article III standing before Congress vetoed. Now, let’s look at Windsor again. The lower appellate court and the plaintiff agreed in Windsor agreed. There was – and still is – an ugly, discriminatory congressional statute affecting “the entire U.S. Code.” So Congress had spoken. These facts are a tad different from Chadha… So where’s the controversy? Stay tuned… Unravelling the Windsor Knot: Part 1 | Part 2
Essential Estate Administration Steps When You\’re Responsible for Saying Farewell
Some of my readers may know that I recently lost my father. As an estate planner, yes, I made sure a number of items were in order. However, as a daughter to a fiercely independent and private individual, I was compelled to respect certain boundaries. Another good colleague and fellow author, Lisa Lilly, who also lost her father, recently reminded me in her blog that it’s never too early to share important knowledge. So below are several tips on the very beginning activities of “estate administration.” And while I intended to write this article before my father made his transition and a little later in the year when the sky was less blue and Lake Michigan waters were much cooler, there really is no time like the present… Much of this can be applied irrespective of your relationship but for precision, this article makes the following assumptions: “The conversation” took place and there were no unresolved issues; consequently, there’s no family feud. Your loved one had a primary care physician, nurse, or hospice caregiver. You will be the one to say the final farewell. The Steps Make sure you have a couple of very close family members or friends on call for “that day,” so you will have support around you. Phone the doctor or the hospice; DO NOT phone 911 or the police. Prepare to spend a few hours waiting for the doctor or nurse to arrive to make the final pronouncement. While waiting, do what you feel you need to do. DO NOT listen to directions from other friends and family unless you want to. Be prepared to answer lots of questions about: your relationship to the departed; who found the departed, when, and how; what funeral home should be notified, even if cremation or anatomical donation are the instructions; your complete contact information. And don\’t take it personally. Be prepared to have your loved one physically removed from you permanently; this is why it’s good to have someone else with you, the emotional effect on you cannot be predicted. Be prepared to emote or manifest emotion somehow. DO NOT access any financial accounts; your loved one wouldn’t want you arrested for fraud. Contact everyone who knew the dearly departed, including church, community, and social groups. Get a couple of family members or close friends to help. Depending on the global reach of your loved one and his or her final wishes, start to think about a memorial service date that is soon or later, to allow for friends and family to make reasonable travel arrangements. Visit the funeral home asap to order several death certificates. You don’t have to start on the arrangements then. DO NOT BE PRESSURED into making decisions like date and time until you’re ready. Make sure you have all keys to everything – the house, apartment, car, safe deposit box, storage, and anything else. And LOCK UP. Complete address forwarding cards and forward the mail to you. If needed to pay for services, contact the insurance company. If not needed, then wait until the services are concluded to handle all financial matters. Write an obituary and send it to the appropriate publications: neighborhood or city newspaper and alumni magazines. Delegate. Delegate. Delegate. Carve out time for yourself. Move forward, genuinely, gently, one day at a time.
The Illinois 10-Step Probate Program
[vc_row type=\”in_container\” full_screen_row_position=\”middle\” column_margin=\”default\” column_direction=\”default\” column_direction_tablet=\”default\” column_direction_phone=\”default\” scene_position=\”center\” text_color=\”dark\” text_align=\”left\” row_border_radius=\”none\” row_border_radius_applies=\”bg\” overflow=\”visible\” overlay_strength=\”0.3\” gradient_direction=\”left_to_right\” shape_divider_position=\”bottom\” bg_image_animation=\”none\”][vc_column column_padding=\”no-extra-padding\” column_padding_tablet=\”inherit\” column_padding_phone=\”inherit\” column_padding_position=\”all\” column_element_direction_desktop=\”default\” column_element_spacing=\”default\” desktop_text_alignment=\”default\” tablet_text_alignment=\”default\” phone_text_alignment=\”default\” background_color_opacity=\”1\” background_hover_color_opacity=\”1\” column_backdrop_filter=\”none\” column_shadow=\”none\” column_border_radius=\”none\” column_link_target=\”_self\” column_position=\”default\” gradient_direction=\”left_to_right\” overlay_strength=\”0.3\” width=\”1/1\” tablet_width_inherit=\”default\” animation_type=\”default\” bg_image_animation=\”none\” border_type=\”simple\” column_border_width=\”none\” column_border_style=\”solid\”][vc_column_text text_direction=\”default\”]In Illinois, if a loved one passes away without a will or a trust in place, he or she has died “intestate.” Depending on the size and assets of the estate, probate may or may not be needed. Probate is a court proceeding where the judge appoints an “administrator” to the estate. If a will did exist and was appropriately filed, then the judge would probably appoint the will’s “executor.” The only difference between an administrator and an executor is that one is appointed intestate and the other is designated by a will. The administrator is responsible for paying all just debts and taxes, responding to claims on the estate, and concluding the final affairs of the deceased that includes distributing the assets of the estate. Sounds simple, right? Well, in today’s world, probate can be anything but simple. And unlike New Jersey, where it’s quick and cheap, in Illinois probate is long and costly. For example, the first thing one has to do is to get into court, which requires completing a petition that nominates one person as the administrator. What if Jack’s evil twin, Jill, wants to b administrator, too? Hopefully, Jill knows the slayer statute would keep her from collecting if Jack were to meet an untimely demise. The next to do is provide a list of all the heirs to the judge and prove – with birth and death certificates, and divorce decrees – where the heirship line has been broken. What if Thelma’s mom had 2 husbands and 2 children, Thelma and Louise, but Thelma could only find one set of divorce papers – the set involving the divorce from Louise’s father? And that’s all she’s going to find because Thelma’s mom and her dad were in a common law marriage in Kansas before she moved to Illinois. Let’s say the heir hurdles have been successfully jumped and you’ve been named administrator of grandma’s estate. Next we must notify any heirs and creditors, whether known or unknown, that the estate has been opened. What if Grandma forgot to mention that she borrowed $10000 from Uncle Charlie last Christmas to pay for everyone’s gifts and Uncle Charlie accepted a promissory note with the house as collateral? What if there’s no house but you find that Grandma had 12 different accounts in 12 different financial institutions totaling more than $100,000? Get the petition ready and btw – Illinois does not allow pro se appearances in probate. It is because our families are different, mobile, and complex that trusts are often recommended for individuals in Illinois. However, so we have it on record, the following are steps for opening probate in Illinois: Petition the court Notify eligible potential administrators and obtain consent or waivers from them Pay an oath and bond on the estate\’s personal property Prove heirship Appear in court and receive letters of office Notify known and unknown heirs and creditors Take an inventory of the estate assets File the inventory with surety company and heirs’ fiduciaries, e.g., guardians or conservators Respond to creditor claims Distribute assets after 6 month creditor claim period has ended The entire process from opening to closing probate can take anywhere from 9-14 months and perhaps why the steps involved in establishing a trust should be considered the \”probate-anonymous\” program. [/vc_column_text][/vc_column][/vc_row]
If You Have a Facebook, LinkedIn, Twitter Account …
A recent case, Ajemian v. Yahoo!, Inc., came to my attention because it involved access to a dearly departed brother’s Yahoo! email account. A recent change to Yahoo!’s terms of service includes the following: You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted. (Emphasis added by The Shark Free Zone.) Therefore, siblings, who were administrators of the brother’s estate and despite providing a death certificate, could not even access the content of their brother’s Yahoo! account. This case highlights the fact that, if any information that is useful to an estate’s executor or administrator, e.g., a username change, bank or utility online statements, or the names of online accounts that the user had were provided, upon proof of a loved one’s death, the Yahoo! account may be frozen and the information not transferred but destroyed. That means that the executor or administrator will have to go through the departed’s mail, papers, or even underwear drawers, to contact the institution and perhaps wait days or weeks for final account information to be provided. Ouch! The above is also another reason why I’ve said it before and will keep on saying it: Property powers of attorney should authorize access and control of digital accounts and assets. Equally important, a list of user names and passwords, at least for email and financial accounts, should be provided to your designated executor or one or two loved ones. If you bank and enter into other financial transactions online, such as paying a utility bill, without usernames and passwords your power of attorney agent can\’t properly manage your affairs. Arguably, providing the agent under a power of attorney could be construed as “transferring” the rights, but your agent is acting on your behalf, so the transfer is actually what we call a “legal fiction.” But death is death; no fiction that can undo that. So even if you didn\’t take care of the matter while you were on Twitter, if you didn\’t at least authorize your executor to obtain and use this information, then your family will experience even more emotional angst than necessary after your final tweet. What was the ruling on the case? It was remanded back down to the court from which it came to make the decision from a state law perspective, since the deceased was a Massachusetts resident. The Court decided that the selection of law that Yahoo! tried to impose – California was improper given the decedent user lived in Massachusetts and that state would have a decided interest in the case. Maybe this is also another reason for us to be more careful about what we post; it could end up in the hands of a stranger or a loved one who we unduly and harshly criticized. Double ouch!
Women & Obamacare: It Hurts Not to Know
Recently, I attended a great program on women’s healthcare. The discussion included how the Affordable Care Act would affect our healthcare and the decisions we made. So please read this article and share it with all the women you know. Thank you, Affinity Community Services for hosting, Kathy Waligora of the Illinois Maternal and Child Health Coalition, the Chicago Women’s Health Center (CWHC), and Dr. Theresa Jones for sharing such valuable information. Resources to the topics are at the end of this article. Because estate planning and financial planning are closely related, health insurance is a key component to successful estate planning. Without appropriate health insurance, everything you own is at risk of loss … to a hospital bill or to long-term care. So no estate planning involving asset distribution will matter because the hospital bill or caregiving expenses will have created a gaping doughnut of an estate for you. The exponential increase of healthcare costs over the last couple of decades is one reason why fewer and fewer individuals and families considered estate planning: with little or no insurance, planning for the transfer of assets would be an exercise in futility. However, that risk for millions has been and is being mitigated by the Affordable Care Act (“ACA” or “Obamacare”). Before the ACA, 40 million Americans had no health insurance and millions of children would never be able to obtain it because of pre-existing conditions. In 2010, when the ACA passed, the number of uninsured Americans were reduced by 10%. And though the ACA has come under intense fire, by 2014, millions more of Americans and small businesses will receive 50% of credits to help offset the cost of coverage. Additionally, the cost of coverage for women will be fair. Until the ACA was passed, women were made to pay more for healthcare insurance than men and, unlike what most individuals thought, it was not because most women could become pregnant. So why were women paying more for health insurance? That’s a good question that insurance companies have yet to provide an answer for. But they won’t have to because on January 1, 2014, gender will be eliminated as a criteria for determining health insurance costs. Moreover, preventive and wellness services, especially for women, that were not available in many insurance plans will be available to women at no cost through the ACA. The critical need for these services is highlighted by the recent news about celebrity Angelina Jolie’s healthcare decisions. Included in the free preventive and wellness services mandated by the ACA are: BRCA counseling about genetic testing for women who at high risk, Anemia screening for pregnant women, Cervical cancer screening, Domestic and interpersonal violence screening and counselling, Folic acid supplements for women who could become pregnant, Osteoporosis screening for women over 60, and Well-woman visits. The ACA mandates these services included in 22 preventive services because legislators and the current administration recognizes that preventive maintenance and reformed and regulated healthcare for all Americans ultimately reduces healthcare costs across the board for our country, community, and loved ones. Another important feature of the ACA is Medicaid reform. However, states must agree to take advantage of the new Medicaid rules. If Illinois agreed to embrace the rules, it could man billions of dollars and thousands of jobs. However, the 3.8% surtax on families with household incomes of $200,000 or more has fueled the uproar mentioned earlier. This could result in these households being taxed at a marginal rate of near 45-50% and nobody likes to pay taxes. Still, Illinois Senate Bill 26 (SB 26) is pending with regard to this question. As of 5/21 the bill was passed, after several notes, to the House Committee. As I said at the top, information about our healthcare and how to use that information is too important – not just to us but also to our families – not to share, so please pay this forward and let women (and men) know that \”affordable healthcare is available to you.\” Helpful Resources Illinois Congressional Representatives, http://www.ilga.gov/house/ Health Insurance 101, http://101.communitycatalyst.org/aca_provisions/ Illinois Maternal and Child Health Coalition, http://www.ilmaternal.org/
3 Lessons about Grapes and Taxes
As Baby Boomers start retiring, thoughts of mortality and legacy planning begin to dance in their heads. While most boomers don’t have taxable estates…for now…the future is still a question mark for many. While enjoying retirement – golf course, cruises, mountain climbing, museum walks, wine tasting, and theatre galas – plans should be made for a time when the retirement funds must be transferred to someone else. It is critical to know how to transfer retirement proceeds properly so the distributions won\’t be literally and figuratively taxing: Claire and Cliff are in their mid 60’s. They’ve a modest estate – home valued at about $250K with most of its equity remaining, life insurance, and retirement benefits at about $2 million. Half of the retirement proceeds is in a 401(k), 25% is in an IRA, and 25% is in an annuity. They also have 2 kids: Lenny and Lisa. Lisa’s a starving artist, who is barely in the 15% tax bracket but who also has a vivacious and smart teenager. Lenny is 10 years older than Lisa and a savvy professional about to move into the highest tax bracket and has no intention of marrying or ever having children. Claire and Cliff want to distribute their estate to Lisa and Lenny equally and have been told to give the retirement proceeds to Lenny and Lisa outright. Before doing that, however, I would ask them to consider the following in a simultaneous death situation, where Claire and Cliff went down with the Titanic III: An outright gift from a 401(k) or a traditional IRA will be taxed and if the beneficiary is over 59 ½, the 10% penalty may also apply. For Lenny, who’s Mr. Money Bags, that doesn’t present too much of a problem, though no one wants to pay taxes. For Lisa, that would be a boon indeed. But an outright distribution to Lisa would yield less than what she would receive were the proceeds titled to a trust because of income tax consequences. Pick the fruit too young and the wine will be bitter; too old and you may taste too much oak. Claire and Cliff could have the proceeds placed in a trust for Lenny and Lisa. Here, part of Lisa’s benefit would be driven by Lenny’s life expectancy because he is the oldest, which would provide her with fewer years of income. Additionally, Lenny and Lisa must be sure to withdraw at least as much as the minimum required distribution annually or face a hefty penalty. Different varietals require different soils. In a qualified (retirement) annuity, the entire amount of the contract must be withdrawn over the 5-year period following Claire and Cliff’s death. Again, okay for Lenny, but not so okay for Lisa. Tax consequences also apply to this issue. Cabernets are as good as zinfandels; it\’s the consumer\’s tolerance that is key. Just like no 2 families are alike, no 2 children are alike. So make sure that your children know how to make decisions about the different types of distributions they can choose, after you enjoy your fruits. That way, the remaining fruit will, in fact, go to your children and not the community jelly jar.
1 Question to Ask Before Saying You Will
A cardinal rule of estate planning is that the “intent of the testator” governs terms of the will or trust. The testator is the person who initially “writes” the will; the name for the person who writes the trust is a “grantor” or “settlor.” Lawyers draw the documents up but testators or grantors are the original writer – our clients. The terms of a will or trust are carried out by a fiduciary – an executor or a trustee. Fiduciaries are held to a higher legal standard of integrity because their roles are considered so important. So they can be sued if they do not follow the “intent of the writer,” so to speak. Yet, though I try to remind them, folks tend to forget about the other fiduciary roles that also carry a kind of “intent of the writer” rule. Let’s consider a brother-best friend story. Carrie was a single 35 year-old woman who, as a young teenager, witnessed her father die an agonizing death when he was stricken with a slowly debilitating and malignant brain tumor. So when Carrie got the bad news about her condition, she got her affairs in order and instead of designating her brother Don as the agent under her healthcare power of attorney, she named her best buddy, Tim. Carrie and Tim were just as close as Carrie and Don but they talked more openly about end-of-life issues ever since Carrie’s father passed. Carrie told Tim that she would never want to die in a hospital like her father and said she knew that she could count on him to fulfill her wishes. Well, Carrie’s days started dwindling and Don pleaded with Carrie to go into the hospital or into a hospice facility. Carrie refused. From her spacious apartment, she could hear birds chirp and children laugh outside. The pain was tolerable and she could move around a little with a cane. Daily care was difficult and speaking was getting even more difficult, but she was staying put. Then one day, Carrie couldn’t talk. Don pleaded with Tim now. Tim looked at his dear friend who had no appetite, occasionally winced at the pain, but smiled at the children\’s laughter underneath her bedroom window. Don wanted Carrie in a facility to be watched 24/7 because he couldn’t do it and Tim could only be with her a few hours a day. Tim agonized because he understood Don’s concerns and really wanted the same thing. But Tim saw Carrie’s smile at the sound of the birds, recalled her horrific struggles with her father’s death, and when Carrie passed on, in her home wearing a slight grin, Tim was also at peace. Healthcare decisions under a power of attorney include end-of-life decisions, and it\’s not just about medicine. But the agent’s role, as a fiduciary, is to step inside the shoes of the principal and make the decisions the principal would make. Doing anything less, even if it means what we would perceive as more and a better quality at the end of life is going against one’s fiduciary duty, ignoring the cardinal rule. So when you’re asked to be a fiduciary, think long and hard and then think again. How well do you know the principal’s shoes and can you stand to completely take yours off to walk in someone else’s?
5 Mentoring Tips from the Grave
As a wills and trusts attorney, frequently, clients or friends ask me how they or their parents can prevent young, adult beneficiaries from wasting their “hard-earned” inheritance. I explain that this can be managed in at least 5 ways: Use hard cold facts and an iron club. Tell them that the money was hard-earned by you and don’t leave them anything but a videotape of the family history. Leave all the money and possessions to charity. Bribe the youngsters and hope for the best. Of course, these are 2 actions that make most lawyers’ skin crawl. Educate the little people from the time they get their first piggy bank from Grandpa. Use conditional provisions that don’t “offend public policy.” This means that, while you can’t disinherit your child from marrying outside his ethnicity and can’t tell him he won’t get a dime unless he divorces his current spouse, you can cut the cord if he becomes a lifetime criminal. You can shorten the cord if she becomes a lifetime substance abuser. And you can make the cord’s length dependent on grades and gainful employment. “Staggered mentoring,” which I’ve mentioned before, is another tool. With a “staggered mentoring” provision, Grandpa leaves Hermoine 30% of her pot of gold when she turns 25, another 30% when she turns 30, and the balance at the age of 35. My favorite is a combination of 3 through 5, but as my favorite contracts professor said, “If it walks like a duck and squawks like a duck, it ain’t a beagle.” So, if Hermoine’s been in and out of jail since the age of 16 and she’s 25 now, education, at least of the financial planning kind, isn’t probably going to work.
The Money Talk – to Prevent Relationship Cardiac Arrest
April is National Financial Literacy Month and, thus, this week\’s column discusses something that needs to happen between committed couples before the number crunching begins: “The Money Talk.” Ideally, this talk should occur before you consider cohabiting, marriage, entering into a Civil Union, or having children. Why? Because money is one of the leading causes of relationship stress and is the bane of most family feuds in estate planning. So, if you and your honey can get this straight before you tie the knot or start playing with grandkids, then your relationship monitor will probably hum right along, at least with respect to finances. Ergo, make a “date,” collect your documents – which are alluded to below – and after a good meal and a nice walk, have a seat and start talking. The following issues and questions provide a good start: Credit score. Here’s what the agencies have to report. OK, so I’ve had a few bumps in the road. What’s your score? Net worth. This is what I earn; this is what I’ve saved; this is what I owe. What’s your net worth? Financial planning. These are my current financial obligations. What are yours? Family obligations. Once a month, quarter, or year, I give Aunt Sue a couple of hundred dollars to help her out. Do you assist any family members financially? Charitable giving and gifting in general. Annually, I give approximately $______ to these charities? What about you? For holiday and birthday gifts, I generally spend $______. What about you? But you don’t have to tell me how much you spend on me. Baby Planning. Build. Feed. Clothe. Shelter. Educate: $200,000 for 4-year college tuition is the current projection for the year 2030. \’Nuf said. Retirement planning. Presuming you’ve met with a financial advisor: This is what I’d like my retirement to look like and so this is what I’d like to have saved for retirement in 5 years, 10 years, 15… What do you want your retirement to look like and what are your plans? Of course, this is just a suggested list that should be toggled so it’s not always starting with you and could actually start off with something akin to, “I’ve been thinking about going on vacation, but I also am thinking about retiring or starting my own business…” How start The Money Talk is important because admitting one\’s financial boo-boos or bankruptcies is difficult; sometimes admitting that one is a trust fund baby who can probably feed the world three times over, build an international space station that would house China\’s population, and that you have more cars than GM built last year can also be scary. But what is most important is that you start. I know a couple who had it before marrying and still has it at least quarterly…
Second Marriages, Drunken Debauchery, & Children Left Behind
Often couples with no children think that they don’t need a will because their spouse will fulfill their wishes with respect to extended family. Sometimes it works; often it doesn’t. Though we can hope, we simply cannot predict what the future will hold for us or our loved ones, which is why planning is critical. Incapacity can strike in more ways than one leaving our extended family members or favorite charities empty: Gina and Lisle were in their second marriage. Gina was a widow when she and Lisle met. Her first husband was a generous man, with no extended family, so he left Gina the bulk of his estate. Lisle’s ex-wife retained a very good divorce attorney, so she ended up with nearly everything he owned, including the shirt off his back. Fortunately for Lisle, his ex found a wealthier second husband and Lisle was eventually able to buy a new shirt. Neither Gina nor Lisle had children but both had siblings and Gina had nieces and nephews who captured her heart. Lisle only had one brother, Jake, a scoundrel and leech, living off relatives and women who took pity on his substance abuse and inability to stay employed for longer than a couple of weeks.* One day, Lisle received a call from a hospital. Gina had been admitted after slipping and falling on an icy intersection crosswalk. She broke her ankle as a result of the fall. Lisle arrived at the hospital and the doctor told him that while treating Gina, they noticed she had an irregular heartbeat. They wanted to examine the cause and decided to keep Gina for a few days and run tests during that time. After running the tests, doctors determined that Gina had severe blockage but before the hospital could treat the blockage, Gina developed a bacterial infection. And this bacteria was very resistant. The bacteria was so resistant and Gina’s immune system so compromised by the blockage that she never recovered and died in the hospital. Gina left no will or trust but had a verbal understanding with Lisle that part of their combined estate was to go to Gina’s nieces and nephew to assist with their college education. However, as Lisle floundered in grief after Gina’s passing and became gravely ill himself a little more than a year after Gina\’s death, he fell victim to Jake’s undue influence and the nieces and nephews never got a dime. Sometimes it’s not your incapacity but the disability of others that may undermine your wishes if you haven’t a solid plan in place. *Whether he realizes it or not, Jake is incapacitated with respect to Illinois law, whose definition of incapacity includes, “because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her estate as to expose the person with disability or dependents to want or suffering.”