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Estate Planning with Colleen McNulty: Mike Agruss Law Video Podcast

Taylor Kosla: Welcome to the Mike Agruss Law Video Podcast. I’m Taylor Kosla, an attorney at Mike Agruss Law. Today, we’re talking about probate and estate planning with attorney, Colleen McNulty. Colleen is an associate attorney at the Garofalo Law Group. Hi, Colleen, how are you doing?

Colleen McNulty…: I’m good, Taylor, how are you?

Taylor Kosla: I’m good. Thank you so much for joining me today. Let’s start off with how you began to work at the Garofalo Law Group.

Colleen McNulty…: I started working at Garofalo Law Group a little over two years ago now. I had just taken the bar exam and I was doing some part-time work for AdaptiBar. I don’t know if you know it, but they’re an online bar prep company.

Taylor Kosla: Yeah, I’m familiar with them.

Colleen McNulty…: Yeah, it was developed by [inaudible], and he is really good friends with Greg so he knew I was looking for something. He gave my name to Greg, and Greg reached out, and that’s how I got working with him, and I’ve been working there ever since.

Taylor Kosla: Great. Sounds like you like what you do. Based on our previous conversations, you like who you work for. What sort of estate planning services do you provide?

Colleen McNulty…: We do a lot of estate planning services, especially now with the pandemic. We have a couple of different estate planning packages, which I’ll talk about later, but basically, we have a basic will plan, we have a living trust plan. We do some advanced planning as well, and then Medicaid and retirement plans. Then of course, special needs planning as well, which is really important.

Taylor Kosla: What sort of special needs planning do you do?

Colleen McNulty…: We do a lot for families who have children with special needs to make sure that if something happens to the parents, everything is set up for the minor if they were to pass. It helps so that they’re protected later on in life and that they have all the benefits that they would need.

Taylor Kosla: Okay. When I think of having a will or trust, I think of people my parents’ age, when do your clients typically come to you for estate planning advice, and when do you recommend they should come to you for estate planning advice?

Colleen McNulty…: We definitely have clients of all ages. I think that the answer to when we recommend someone begin, is going to shock you. I was talking with Greg about this as well, and when I first started, it was surprising to me, but we recommend the age of 18.

Taylor Kosla: Wow.

Colleen McNulty…: We do that because, at least at the age of 18, you should have powers of attorney in place. We can talk that a little bit more when we talk about guardianship, but the reason being, is we do have a lot of cases right now, where unfortunately, it’s someone who lives passed away very young. The issue becomes, for example, paternity. In Illinois, there is no presumption of paternity. If you have someone who you’re not close with is a father, or you never had them in your life, it’s best to have a will to, essentially, disinherit him.

We have a couple of cases right now where we’re fighting because the father was never on the birth certificate, never had a role in the child’s life, but we have to fight to get him off heirship because he is an heir when the decedent passed away. So, it just becomes really difficult, and it’s a lot of money because we have to litigate the issue. So, it’s better if you have a will as soon as you can, especially if there’s a situation where you don’t want a family member to inherit any of your estate.

Taylor Kosla: Well, it sounds like I’m quite far behind on the game. So, we might have to schedule a call to do some estate planning for myself. Can you explain the key differences between a will and a trust?

Colleen McNulty…: Sure. I think a lot of people get these confused and I think a lot of people don’t understand the estate planning process. Basically, what a will is, is you can express your wishes for how you want your property to be distributed upon your death. You can appoint someone to administer your estate. But the main difference between a will and a trust is that, even if you have a will, your estate still needs to go through probate, most likely.

If you have a trust, a trust will avoid probate. That’s the most helpful thing about a trust, is basically, what a trust does, is it creates a legal entity where you can put nearly all of your property into it, so it avoids probate. That’s helpful because it allows your loved ones to get a distribution faster upon your death, and it’ll avoid all the issues with probate, like legal fees, court costs. It’s a public proceeding, so everything is out there for the public to view. That’s the benefit of having a trust, is that it would avoid that whole probate process and the stress and everything that comes with that.

Taylor Kosla: Okay, so it’s an expedited and more efficient way of setting up assets that avoids the court process and the costs associated with that?

Colleen McNulty…: Exactly.

Taylor Kosla: Okay. What is an executor of an estate, and what are the roles and duties of an executor of an estate?

Colleen McNulty…: Sure. So, an executor is usually the person that the deceased named in their will to administer the estate. In most wills, you’ll see there’s someone appointed to be the executor, or there’s a successor executor appointed if that person isn’t willing to act. But in going along with that question, an administrator is someone, it’s basically the term for an executor, but if you don’t have a will. So, the court appoints an administrator if the person dies without a will.

Basically, their job is to administer, and it’s really just the procedure to change title to the estate, that’s their job. So, they have to file the will if there is one, they have to file the proper court documents, they have to notify creditors and any debtors. So, they have to really go through that whole process. Then at the end of that whole period, then they can administer whatever is left to the heirs or beneficiaries. So, their job is really to work with the court, work with the attorneys, and document any assets, and gather inventory lists, and provide all this information to the beneficiaries, the creditors, and the court.

Taylor Kosla: You’ve touched on this terminology, if I remember it correctly it’s, when someone dies without a will, it’s intestate, is that correct?

Colleen McNulty…: Yes.

Taylor Kosla: All right. What happens if an Illinois resident dies without a will or trust, how’re his or her assets dispersed?

Colleen McNulty…: If someone doesn’t have a will, it’s going to be distributed pursuant to the Illinois Probate Act. That’s where all the problems start to come in, is like I was talking about earlier, if you have a family member that you’re not in touch with, or you don’t know where they are, we have a lot of cases where that happens. That’s why having a will, you can avoid those issues, because the probate act was developed by the legislature. It basically just gives a hierarchy of who’s going to be taking the property when the person passes. So, for example, if you have a surviving spouse and children, the spouse will take 50% of the property and the children will split the remaining 50%. If you don’t have a spouse and you don’t have any children, then it’s usually distributed to the parents and any siblings that you have.

In that case, a lot of times what people don’t realize, is that half siblings are still your siblings. We have a lot of cases where that becomes an issue if one of the parents of the deceased had children with another woman or had another family, and the decedent had no relationship to them, that’s where the issue comes up, because a lot of the families that say that they didn’t have a relationship and they don’t want to share that property with them, but by law, they are heirs and they will be receiving under the estate.

Taylor Kosla: I do remember my law school professor for estate’s and trusts telling me that if you like reality television, you’ll like the theory of law. I like reality television, and I find this area really interesting, but if someone wants to avoid all the drama and hire you as their attorney, how much does it cost for your firm to prepare a will or trust?

Colleen McNulty…: Like I said in the beginning, we have a couple of different plans. I’ll go through the two basic ones. We have a basic will plan, which can cost anywhere from $2,000 to $3,500. That package includes the drafting of a will, the drafting of a power of attorney, both property and healthcare, a living will, which is an end of life directive, a HIPAA authorization form, and then all the consultations and letters that go with that. There’s a couple of different options under that plan as well.

Then we also do a trust plan, a revocable living trust plan, which can go anywhere from $4,000 to $5,500. That includes also the powers of attorney, a pour over will, the assignments of personal property to the trust, which is basically funding the trust. Because if you have a trust, it’s also important to fund it and make sure that all of your assets are in trust, because if they’re not, then you’re not avoiding probate and it wasn’t really worth it to draft the trust. You have to make sure that all of the necessary assets are put into your trust as well. So, we assist with that process as well.

Taylor Kosla: I assume you’d have to continue to update that trust as you acquire more assets over time as well?

Colleen McNulty…: You don’t necessarily have to update your trust, but you just have to make sure that you are titling the assets properly so that they are in the name of the trust.

Taylor Kosla: Okay. Are there other packages that you have, or is that pretty much it?

Colleen McNulty…: We do. We have a couple other ones, like I said in the beginning, we do special needs planning if it’s necessary, we can do advanced planning. I know Greg has also done a couple estate plannings for people who own businesses to protect their business interests and everything like that. Another one that’s interesting is Medicaid planning and stuff like that, because that helps protect government benefits. As you know, I’m sure you’re familiar with this, sometimes if a person receives government benefits and they receive money, that can interfere with them taking those benefits. So, we do some estate planning for that as well. We do that especially in our guardianship estates. If the disabled person is receiving any government benefits, we have to make sure that those are protected. So, we do estate planning there as well.

Taylor Kosla: As far as drafting and creating wills and trusts, is that something that you’re doing remote right now? I think it’s my understanding that there are signatures that need to be witnessed and stuff. How are you dealing with that at this time?

Colleen McNulty…: It can be done remotely. We did do it remotely a little bit at the beginning of the pandemic because the governor had that law about remote notary. So, you could do a notary via Zoom. We did stop that. It was a little bit difficult, but we do have people in the office. So, we do provide people with a notary and the witnesses for signature.

Taylor Kosla: Okay. I’ve worked with young personal injury cases where the injured party is deceased and we need a family member appointed to bring the lawsuit, can you tell me a little bit about this process and what you do to get the person appointed as an administrator of the estate?

Colleen McNulty…: Unfortunately, with a lawsuit, you can’t really avoid probate, because you need to have someone appointed to have the authority to file the lawsuit because the deceased person can’t file their own lawsuit. So, that process does have to go through probate. That’s why, like you said, we work with a lot of personal injury firms, including yours, to get those estates open. The whole process basically starts out with the filing of the will, like I said earlier, if there is one, that needs to be done right away. Then we go through with the client, we go through the heirship of the decedent, and we get all the opening draft documents drafted for the court, and then they get filed with the court.

The judge gets assigned to the case. If the judge approves the documents, the estate gets open, and then we start the process of administering the estate. In personal injury cases, when the only asset is a cause of action, typically, we’re not really that involved until the lawsuit settles. We’ll only have yearly status dates with the court to advise them how the law division case is going and if there are any other issues. One issue we do deal with right after the estate is open, is creditors, like I talked about earlier. It’s really, really important that we notify creditors.

There is a claims period that occurs when someone passes. The claims period is normally two years from the date of death. But if you publish notice in the labile, it’s in our newspaper like that, the claims period gets cut down to six months. So, it’s really important there, that we notify any known creditors that the administrator or the person handling the estate knows of. Because if we don’t send them notice, then the six months won’t apply to them and the two period will actually apply to them.

So, that’s why it’s really important that we know about any creditors. In personal injury cases, it’s usually the nursing home who still needs to be paid, it can be credit card companies. The decedent had a credit card and there was an unpaid bill. So, those are the ones we see the most often. It’s always important that we notify them right away that the estate has been opened, so that if they want to file a claim, they can. The best reason to notify them is because they most likely won’t file the claim in the allotted time period, and then the claim is barred. That’s why we always encourage people to let us know if the decedent had any credit cards so we can alert those companies, or if they were a resident in a nursing home so we can alert the nursing home as well.

Taylor Kosla: It’s really interesting to hear what you do on your end. Even though we work together, I feel like I don’t have that good of a grasp on what you’re doing, but I know you’re doing a great job, always. Under what circumstances will a court appoint a guardian?

Colleen McNulty…: Guardianship is usually for people who have not executed a power of attorney. In that case, what happens is, it’s a similar process to probate. You have to file a petition for guardianship. You have to get a CCP 211, which is a report of physician. You have to have a doctor’s report. There are several questions on the doctor’s report for the doctor to fill out regarding the competency of the respondent that’s the alleged disabled person. So, after you get all of those documents together, the courtroom will review them. The court usually appoints a guardian ad litem. The guardian ad litem’s job is to investigate the status of the ward, where they’re living, whether or not they’re competent, whether or not they have any objections to the petition. Because the respondent needs to be served with notice, because you’re essentially stripping their rights away. When you are asking the court to appoint a guardian.

Typically, the guardian ad litem goes out to visit with them, to see if they have any objections, see if they’re capable of even responding sometimes. Most of the time, our clients are in a coma and they can’t communicate, but we typically always have a guardian ad litem appointed to investigate. Then based on the report of the guardian ad litem and the report of physician, then the court will appoint a guardian.

So, a lot of the time we see cases of dementia. If an elderly person didn’t have powers of attorney and someone needs to start acting for them to make decisions. In the context of working with your office, unfortunately, it’s usually some type of bed sore from a nursing home or another instance with something that happened at a nursing home, a fall or something and the family wants to bring a lawsuit. If the person doesn’t have powers of attorney, then they’ll need to have a guardianship open so that someone can sue on their behalf, because in order to file that lawsuit, you have to be competent.

Taylor Kosla: Guardianship is pretty common with minors as well, correct?

Colleen McNulty…: Yeah, so guardianship in minors are two separate courts actually. There’s guardianship and then there’s minor’s estates. If the minor isn’t isn’t competent or suffers from a disability, you can also petition to be a guardian of the minor. Minor’s estates are also common if the minor is going to be receiving funds from a decedent’s estate. You always have to open a minor’s estate if the minor is going to be receiving, I believe it’s over $10,000.

What’s interesting to me about minor’s estates, and what’s really hard to explain sometimes to our clients is, just because you’re someone’s parent doesn’t mean you have the authority to receive their funds. We always have to get a guardian appointed for the minor, and that’s sometimes really confusing for clients as well, because they think, well, I’m their mom or I’m their dad, I should already have that authority, but they don’t.

Taylor Kosla: Yeah, I’ve certainly encountered that in a few cases on my end. I’m sure COVID-19 has created a high demand for estate planning services and attorneys like yourself. COVID-19 has also changed the landscape for many areas of law. How has it altered your practice, and do you think any of these changes could be permanent?

Colleen McNulty…: Well, I think estate planning has definitely gone up. Once the pandemic started, we definitely had a surge of estate planning, and I think it’s surging now for all of the estate planning attorneys, which has been helpful, because like I said, it’s great to have an estate plan in place. It saves a lot of problems in the long run, and it definitely saves on the expenses of opening a probate estate and saving for that on your loved ones.

So, hopefully that stays up. I think that’s great. I think it’s always great when someone wants to start their estate plan, because it means they’re starting to think about what should happen to their assets upon their death. They’re expressing their wishes, which the court always gives deference to. So, I think that’s a great thing. I definitely hope that that stays up.

The other surge we had in probate, was unfortunately, with nursing homes and the COVID outbreak, we definitely had a lot of surge on lawsuits with that. So, there was a greater need for probate. I hope that doesn’t keep up, but that was the two big surges we had, definitely, right off the bat.

Taylor Kosla: Okay. Let’s do some rapid fire questions. What is your favorite food?

Colleen McNulty…: Probably pizza or dessert.

Taylor Kosla: What kind of pizza?

Colleen McNulty…: Pepperoni.

Taylor Kosla: Like Lou Malnati’s? You’re from Chicago.

Colleen McNulty…: I don’t like deep dish.

Taylor Kosla: Uh oh, so what’s your favorite?

Colleen McNulty…: Probably Pat’s Pizza.

Taylor Kosla: Interesting. I’ve actually never had that, but I’ve heard great things.

Colleen McNulty…: Yeah, it’s really good. It’s over on Lincoln and [inaudible].

Taylor Kosla: I’ll have to check that out. What is your favorite animal?

Colleen McNulty…: Probably a shark. I love shark week.

Taylor Kosla: My friend works for Discovery, I’ll have to tell her you said that.

Colleen McNulty…: Oh my gosh, are you kidding me?

Taylor Kosla: Yeah. That’s her favorite week of the year too.

Colleen McNulty…: That sounds like an amazing job.

Taylor Kosla: Yeah. If you could teach one subject in school, what would it be?

Colleen McNulty…: I think it would probably be history or something in the humanities, like reading or writing.

Taylor Kosla: Did you study history in college or anything?

Colleen McNulty…: No, I did legal studies and communications, but I think I would want to teach probably somewhere in grade school. I feel like legal studies and communications are not topics you learn in grade school.

Taylor Kosla: No, not in my grade school at least.

Colleen McNulty…: I’d probably pick like a social studies, I think.

Taylor Kosla: Nice. What do you like to do most on the weekends?

Colleen McNulty…: In the summer and in the warmer months, I really like to golf. I did a lot of golfing this summer, which was really nice because it was about the only thing that you could do because of the pandemic since it was outside and you’re kind of far away from anyone. So, I started trying to take up golf, because I feel like a lot of lawyers golf too.

Taylor Kosla: That’s great. I actually started golfing in high school. I played on the team. We should definitely golf together sometime, I’m always looking for, especially women, at these lawyer golf outings, 99.9% men.

Colleen McNulty…: I agree. I feel like it’s always weird golfing, because I don’t want to seem bad or anything, but that’s why I’m more comfortable golfing with people I know.

Taylor Kosla: Yeah. You just have to keep up with it. That’s awesome. What is the best way for people to get in touch with you?

Colleen McNulty…: Our phone number, our office line is (312)753-6000, and the best way to get in touch with us via email, we actually have an email for our whole office, which works really well, so that when you email it, everyone in the office gets the email. So, you’re almost always going to get a response. That email is [email protected]. So, if you emailed there, everyone will see the email and you’ll get a response.

Our website, let’s see what our website is. Edit that out. What is it? Our website is www.glgfirm.com.

Taylor Kosla: You are very responsive. I’ve experienced that firsthand. I appreciate you taking the time to be here with me today, and make sure to tune into our next episode.

Colleen McNulty…: No problem. Thank you.

Taylor Kosla: Thank you.

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