NAME CHANGE

By David McCarthy

The story is told of a certain Raymond Nusspickle who did not like his name. So he changed it. To Henry Nusspickle.

To do that in Illinois - change your name - it is necessary to reside in the state for six months, file a petition in the state court and publish notice in a local newspaper.

The petition must be signed, verified, and filed in the state court in the county of residence. The notice must be published three weeks in a row, and the first publication must occur at least six weeks before the petition is presented to the judge in open court.

The same petition can be used to change the name not only of the petitioner but also of the spouse and adult children of the petitioner (with their consent, of course) and minor children (if the change is in the best interest of the minors).

The disqualifying factors are what you would expect them to be, e.g., conviction for sexual abuse of a minor, for identity theft, or for any felony that is recent and unpardoned.

New Illinois Laws

One hundred ninety-four new laws go into effect in Illinois on January 1, 2011. A partial list follows:

Credit History Discrimination: Employers will no longer be able to request credit reports as part of the hiring process nor can they ask about an applicant's credit history in the interview.

Red Light Cameras: All red-light violations will now be reviewed by a police officer, a retired police officer or technician not employed by the company that runs the cameras. An image of the violation must be made available on the Internet, and any municipality or county that uses red light cameras must provide notice to the public by posting the locations of the cameras on their official web site. Finally, a safety impact study must be undertaken to assess the number of accidents at the red light camera monitored intersections.

Unpaid wages: Workers are now allowed to go straight to court to collect their wages plus any legal fees when employers don't pay.

Adoption: Adopted adults no longer need a court order to obtain their birth certificates.

Pet disclosure: Pet stores must inform potential buyers about an animal's health history and the name of the breeder as well as other details.

Commercial Vehicles: Increases the fine to no less than $500 for commercial trucks that fail to display the name of the company on the side of the vehicle.

Fake dope: Outlaws the sale of "Spice" or "K2," a material similar to synthetic marijuana.

Sexting: Teens under 18 face stiffer penalties if they are caught distributing lewd photographs using their cell phones or computers.

Car seats: The fine increases to $75 from $50, for not properly strapping a child into a car seat.

Belt-in passenger: Drivers must adjust and fasten a passenger's safety belt if the passenger is unable to do it.

Bike safety: A new law makes it illegal to "crowd" or threaten a bicyclist by unnecessarily driving a car or truck too close to a bicyclist.

Presidential primary: The date of the presidential primary election moves to the third Tuesday in March in even-numbered years.

HAPPY NEW YEAR!

Ring out the old, ring in the new,
Ring, happy bells, across the snow:

The year is going, let him go;
Ring out the false, ring in the true.

~Alfred, Lord Tennyson, 1850

MORE ABOUT AVOIDING PROBATE

by David McCarthy

We recently spoke about an effective (but imperfect) tool for avoiding probate: the living trust. Some elaboration about the subject, probate avoidance, might be of interest.

Probate is not the ordeal it is widely supposed to be, and its hellish reputation is a triumph of the advertising of the living trust industry over reality.

One of the claimed advantages of the living trust over probate is privacy. The living trust "community" cited for this point the estate of a deceased celebrity (if memory serves, the celebrity was either Bing Crosby or Natalie Wood). In any case, the estate was probated. In the course of that proceeding an inventory of the property of the departed was required by law to be filed of record. And the gawkers of Southern California were at liberty to pull the file and see all that the deceased owned.

The risk of that is diminished if not eliminated in Illinois by the availability of "independent administration." Virtually any estate that must be probated in Illinois is eligible for "independent administration." "Independent administration" eliminates the privacy objection touted by the proponents of the living trust: The inventory of the property of the deceased need not be filed of record in an "independent administration."

Let us now turn to that most basic and obvious of probate avoidance devices: the will. True, the existence of a will does not, strictly speaking, enable one to "avoid" probate. It can and does, however, manage and control a number of risks that give probate a bad name.

The greatest advantage of a will is surpassingly simple: It distributes the property of the deceased in the way that the deceased intended the property to be distributed.
 
When a person dies intestate (that is, without a will), the property is distributed in the way that the State dictates pursuant to the statute of descent and distribution. Those intentions -- the intentions of the deceased and the intentions of the statute of descent and distribution -- are not necessarily one and the same. Another advantage of a will, especially as to estates of some consequence, is that it can call for no surety on the bond of the executor. Surety bonds can get expensive.

There are other devices that can streamline and simplify probate, or avoid probate altogether. Holding property in "joint tenancy" is one such device. Property held in "joint tenancy" does not pass into the probate estate of a joint tenant so long as one other tenant is still alive. Rather joint tenancy property passes, upon the death of one joint tenant, to the co-tenants who survive. Another handy device is for the testator (the person who makes a will) to purchase a modest policy of insurance on his/her life and designate as the beneficiary thereof his/her estate. The proceeds of the policy payable upon the death of the person whose life is insured will pass into his/her estate and provide liquidity to pay expenses.

Probate differs in no important way from any of the other business and affairs of life that end up in court.

There is a direct correlation between the time, expense, uncertainty and hard feelings and the level of contest. When all disputes between the parties in interest are resolved by agreement, the cost (in all senses of the word "costs") is low. When all disputes between the parties in interest are resolved by the court, the costs are high. In most cases, we see a bit of both, that is, a mix of disputes resolved by agreement, and disputes resolved by order of court. And over time, in any given case, the amount of business resolved by agreement rises and the amount of business resolved by the court falls, because the parties in interest feel ever more acutely the pain of having to pay the lawyers.

SEVERANCE PROPOSALS

by David McCarthy

Severance proposals have two things in common.

First, no two are the same with respect to the number of months of pay offered. There simply is no hard-and-fast rule about this.

Second, they are all the same (or appear to be) with respect to their negotiability: They are take it or leave it. The thinking is that modification of one proposal will inevitably lead to modification of all proposals.

Living Trust or Probate

by David McCarthy

The "living trust" has been pitched as a new alternative to probate. It is neither one. It has been around for hundreds of years. It is not an alternative to probate.

As a probate avoidance tool, the living trust is only as good as the settlor's ability to make sure that all his/her property gets into the trust.


The settlor is the person who sets up a trust.

As time goes by the settlor acquires other property, e.g., by purchase, by inheritance, or by transfer or exchange of trust property. However, the settlor neglects to put the newly-acquired property into the trust. Unless that property is otherwise disposed of during the lifetime of the settlor, it will become part of the settlor's probate estate. Having a living trust in addition to a will makes sense. Having one in lieu of a will does not.

Doing Business Without a Well Drawn Contract

by David McCarthy

Many are the stories of successful businesses that began with a contract drawn on a cocktail napkin. Contracts don't much matter when everything is going well.

Contracts matter when things go wrong.

One of our clients is now in litigation over a bare bones contract made with a rascal and without the benefit of counsel. The decision to save on expenses on the front end by skipping the lawyers and banging out a crude one-page agreement with the other party has proven to be a false economy.