Estate Planning for Families with a Family Member with Special Needs.

For most families, estate planning is a way to insure that their assets are passed along to the people most dear to them.  However, one in ten families has a family member with special needs.  For these families, estate planning takes on an additional, and more critical layer of planning.  The estate plan must be carefully drafted to insure that the special needs family member’s current governmental benefits are preserved.  Likewise, the estate plan must look to the future when the family includes a minor child with special needs.

distributions under a typical living trust could be deemed a resource resulting in the loss of governmental benefits.  This would put the special needs family member in a position of having to pay for benefits which would otherwise be provided by the government.  The special need family member would then be a worse position had they never received any distribution under the trust.

A carefully drafted special needs trust could preserve the distribution to the special needs family member, to be used to supplement his or her needs, without jeopardizing governmental benefits.  For a consultation about special needs trust, please contact me.

Confused About Real Estate Tax Credits at Closing?

I was representing the buyers at a recent real estate closing.  I was going over the seemingly endless list of charges on the closing statement when their eyes started roll around like they might on one of those spinning carnival rides.  But, when we got to the real estate tax credit, their smiles indicated that they were happy about a credit in their favor of nearly $3,000.00!  This is not unusual for first time home buyers.  At first they think – perhaps hope is a better word – they are getting a windfall.  Maybe you’ve experienced this, too.  It then becomes my duty to burst their bubble and explain what that credit actually means.  If you’ve never bought a home, or haven’t bought or sold one recently you may not be familiar with real estate tax prorations which is how we calculate the real estate tax credit.

We all know about real estate taxes.  It is the subject on the evening news and frequent newspaper articles.  The amount of our tax bills causes cold sweats all over the Land of Lincoln. You may have even attempted to become familiar with how they are determined only to be confused and frustrated by the terms and their definitions.  In the context of a real estate closing, real estate taxes are confusing too.  You see, in Illinois we pay real estate taxes in arrears.  What that means is the taxes on your house for 2012 are paid the following year in 2013, in two installments.  In Cook County, the first installment is usually due around the beginning of March, and the second installment is due in midsummer or early fall, it’s varied over the years.  The first installment is an estimate and is equal to 55% of the prior year’s taxes.  You won’t know the actual amount of the full year’s taxes until the second installment is issued.  In all other counties, the taxes are paid in two equal amounts in May and September.

When you sell your home, the boilerplate language of every real estate contract requires the seller to pay the real estate taxes up to the date of the closing.  So, if you were to close on the sale of your home at the end of this month, you would have to pay the real estate taxes through August 31, 2103. Since the taxes for 2013 will not be determined until next year, we don’t know what the tax amount will be.  Further, even if we did, the county would not accept the payment.  Rather, we estimate what the sellers’ obligation will be, and we give that amount to the buyers as a credit.  Then, when the 2013 bill comes due in 2014, the buyer will pay the bill.  Still awake?

You’re next wondering how you fairly estimate what the tax bill will be.  Here, we keep it simple (please infer sarcasm).  We take the last full tax bill we know of, referred to as the “last ascertainable tax bill,” and adjust it up.  We adjust it up because real estate taxes usually go up from year to year.  How much we adjust the prior year taxes is negotiable and depends on a few factors.  An experienced real estate attorney will be able to advise you.  These days, we take last year’s bill and increase it by five to ten percent.  If you are selling your home and agreed to a five percent adjustment then real estate taxes will be prorated based on 105% of the most recent ascertainable tax bill.  This is the real estate tax proration.  In special cases, such as short sales, there might be no adjustment in which case the proration is simply 100%.

Tax prorations are not exact and are not recalculated later when the actual bill is issued. So, when you sold your home and agreed to adjust the last bill by five percent, but the taxes only went up by three percent, you don’t get back that difference.  On the other hand, if the taxes increased by eight percent, you don’t have to pay any more.

At my recent closing, I had to explain to my clients what while they got that nearly $3,000 credit, they will have to pay the full amount of the 2013 tax bill when it is issued in 2014.  They understood, and while their joy was tempered a bit, they explained that they were just happy to see one number on the closing statement going in their favor.

If you have any questions about real estate tax prorations and credits, or any other real estate questions, don’t hesitate to send me an email.  I enjoy responding to emails.  It keeps me from getting aggravated during Cub games.

Housing for the Homeless

Building residences for homeless persons in the northwest suburban Cook County areas is met with opposition from the village boards and claims of discrimination by those who seek to build the residences.  

I think few people, if any would disagree that solving homelessness should be a priority for our society.  However, without having conducted a survey, I can foresee that many people, who support housing for the homeless, would prefer that such housing be provided in some village other than their own.  This is not a rhetorical discussion.  Housing for the homeless is being proposed in northwest suburban Cook County.  Village boards in three villages, Wheeling, Arlington Heights, and Palatine, each considered and initially rejected such plans.  However, all three had different outcomes.

Providing homes for the homeless is part of the Housing and Urban Development’s Supportive Housing Program (“SHP”).  The SHP is intended to provide housing and services which will allow homeless persons to live independently.  The SHP was authorized by the McKinney-Vento Homeless Assistance Act of 1987. See HUD's website for more details about the program.  A support housing plan comes about by a plan proponent selecting an appropriate site and then seeking approval to construct the housing units.  Approval would come from the village or municipality.

In Wheeling, the village rejected the plan citing concerns about zoning, flooding, safety and upset neighbors.  However, the village previously approved a plan to build 50 luxury residential units on the same site.  The proponent of the SHP plan filed a lawsuit claiming discrimination.  The case settled after a judge made an initial determination that there was a “discriminatory effect” and “some evidence of discriminatory intent” on the part of the village.  The plan is going forward and the village agreed to pay $230,000 in attorney fees to the SHP plan proponent.

The outcome was different in Arlington Heights.  After the village rejected the SHP plan, the proponent filed a lawsuit.  The village argued that the plan required far too many zoning variations, and that the village had never approved a plan with that many requested variations.  The judge agreed and found the village acted within its rights.

The proponent of the rejected SHP plan in the Village of Palatine seems to have no plans to file a lawsuit against the village.  The site selected by the proponent is not zoned for residential living and the federal law which governs the SHP does not require that the village change the zoning.  The proponent and the village officials are searching for other suitable locations within the village.

While all three recent cases have different outcomes, it is clear that SHP plans will continue to be proposed throughout the northwest suburbs.  It is also clear that opposition to such plans will continue.  Supportive housing will be a hot button issue for the foreseeable future.

You and Your Facebook Page Partner-Up for that Big Job Interview.

On one side of the coin:  So, you’re at a job interview.  In this economy, it’s the first interview you have had in months and it’s for a job you really want.  Or, it’s just a job to pay the bills.  Either way, you want this job.  You are on your game, giving quick yet thoughtful responses to the questions being asked of you.  Your potential boss smiles and tells you that “I like what I hear. You would do well in this position.”  Then, he pulls out a form and asks you to read and complete it and sign at the bottom.  No problem, so you think.  As you read it, a cold sweat starts to develop.  You are asked to provide your account information including passwords for your Facebook, Linkedin and other social media accounts.  We don’t need to have a discussion about what you wrote, blogged or posted in social media.  Let’s just assume that it will not be helpful.  But, they can ask for that information and you can decline to do so.  Whether you provide it or not, you know what’s going to happen.

On the other side of the coin: You have been running a business for several years, most of which have been successful.  The last few years have not.  You have made a conscious decision to put a lot of your savings into your business to get by this economy.  You need to add an employee or two.  This means a substantial investment of money, time and training.  You know there are a lot of good candidates out there but you have picked wrong in the past.  A bad selection now could be devastating.  You need an edge, how can you learn more about a job candidate?  Prior employers are reluctant to say anything remotely negative for fear of liability (you are the same).  But, the internet is a permanent record and most, if not all of your candidates have jumped into the all-swim that is social media.  Just check their Facebook page, among others.  In fact, request their passwords.  Then, you can get a really good idea of the stranger in whom you are about invest a substantial amount of money.

Well, on May 22, 2012, the Illinois General Assembly flipped the coin in passing HB3782.  The synopsis of HB3782 on the Illinois General Assembly website states “that it shall be unlawful for any employer to ask any prospective employee to provide any username, password, or other related account information in order to gain access to a social networking website where that prospective employee maintains an account or profile.”

The bill has been passed onto Governor Quinn for his signature or veto.  We are waiting to see if the Governor will call the coin flip for the employer or the employee.  I will keep you posted.

The Odd Questions I am Asked.

An odd question I'm often asked is "can my wife testify against me?"  Well, the question isn't so odd as the context in which it comes up is.  You can only imagine the conversation which leads to that question.  Well, I here to say that the answer is still NO!  

Just a few days ago, the Illinois Appellate Court in the case of People v Trzeciak reaffirmed the Marital Privilege.  In that case, the jury found a man guilty of murder.  The judge allowed testimony from the defendant's wife that he admitted his guilt to her.  The three judge Appellate Court ruled (2 to 1), that Illinois law prohibits testimony as to communications and admissions made in a private conversation between a husband and wife during the marriage, regardless of whether the marriage was harmonious.  Yes, even if your wife hates you, her testimony is barred.  The Appellate Court reversed the conviction and sent that matter back for a new trial.  Now, since this defendant won his appeal by the slimmest of margins, if I were his attorney, I would advise that he send his wife a few dozen long stems roses, with a nice card.

By the way, anytime I am asked this odd question, I am usually asked “You can’t talk to my wife about what we just talked about, right?”  

If you have any questions, odd or otherwise, do not hesitate to contact me.

New Law Helps Homeowners Transfer Their Home upon Death

Illinois has a new law which permits homeowners to transfer real estate upon their death through a recorded instrument and without the need of a will or going through probate proceedings. The “Illinois Residential Real Property Transfer on Death Instrument Act” became effective on January 1, 2012.

Before this new law, if you wanted to transfer your home upon death and without going through probate court, you had to set up a living trust, put title to the home into a land trust, or other through other costly and time consuming steps.  The new law will help homeowners who do not have estates large enough to justify the cost of an involved estate plan.

If you would like more information about the new Illinois and how it may benefit you, please do not hesitate to contact me.