Palley Law Office

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Estate Planning

Can You Get Power of Attorney When Someone Is Incapacitated?

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Families often ask: “How do I get power of attorney when my loved one is already incapacitated?” The short answer is that you can’t — once a person can’t understand or sign documents, it’s too late to grant power of attorney. In Illinois, different legal processes apply. Understanding these rules helps families avoid costly delays and ensures that the right decisions can be made for an incapacitated person.

Like all content on this website, this article is educational in nature, and is not to be relied upon as legal advice. Consult with an attorney for counsel specific to your circumstances.


What Power of Attorney Is — and Isn’t

A power of attorney (POA) is a legal document that lets someone (the “principal”) give decision-making authority to another person (the “agent”). In Illinois, there are two common types:

  • Power of Attorney for Health Care
  • Power of Attorney for Property

But both require the principal to be mentally capable of signing when the document is created.


Why You Can’t Create a Power of Attorney After Incapacity

Once someone is legally incapacitated — for example, due to dementia, stroke, or coma — they no longer have the legal ability to grant authority. At that point, a lawyer cannot draft a valid power of attorney on their behalf.


Options If Your Loved One Is Already Incapacitated

If a person in Illinois is incapacitated and no POA is in place, the family must usually turn to the courts. The two most common routes are:

  1. Guardianship of the Person
    • Court grants someone authority over personal and medical decisions.
    • Similar in scope to a health care POA, but requires ongoing court oversight.
  2. Guardianship of the Estate
    • Court grants someone authority over financial decisions and property.
    • Similar in scope to a property POA, but also requires reports to the court.

These processes are more expensive and time-consuming than having a POA in place ahead of time.


How to Prevent This Situation

The best way to avoid guardianship is planning ahead. Encourage loved ones to:

  • Sign POA documents while still healthy and mentally capable.
  • Review them periodically, especially after major life changes.
  • Consider pairing POA documents with a trust for more comprehensive planning.


Conclusion

Unfortunately, if your loved one is already incapacitated, you cannot get a new power of attorney. Instead, the Illinois courts may require a guardianship. The good news is that by planning early, families can spare themselves the stress, cost, and delay of court intervention.

If you need help setting up a power of attorney in Illinois, contact Palley Law Office to schedule an appointment to discuss your options.

How Long Does Probate Take? What You Need to Know

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Discover how long probate takes in Illinois, what factors influence the timeline, and strategies to simplify probate and protect loved ones.

As with all content on this website, this article is educational in nature, and is not to be relied upon as legal advice. Consult an attorney for counsel specific to your circumstances.


Understanding the Illinois probate timeline

Probate is the court‑supervised process of settling a deceased person’s estate.  It validates the will, appoints a representative, identifies and values assets, pays debts and taxes and distributes the remaining property to heirs .  In Illinois, most uncontested estates finish in six to twelve months , but large or contested cases can remain open for longer .  Planning for the probate timeline helps families understand what to expect and how to avoid delays.

Probate serves several important purposes: it protects creditors by giving them a formal opportunity to file claims, it provides a forum for resolving disputes among beneficiaries and it ensures that property titles are transferred legally.  Without probate, heirs might face competing claims or unclear ownership of assets.  However, because the process is public and can be time‑consuming, many families choose to plan their estates so they can minimize or bypass probate when possible.  Knowing how and why probate works allows you to decide whether it is the right path for your estate.

Not every estate requires probate.  Illinois law allows heirs of estates worth $150,000 or less that contain no real estate to use a small estate affidavit instead of formal probate .  Probate becomes necessary when assets are titled solely in the decedent’s name, the estate exceeds $100,000, there is real property or there are disputes or creditor claims .  Understanding when probate is required is the first step in assessing how long the process might take.


Key steps and duration

The Illinois probate timeline follows a standard sequence:

  1. File the will and open the estate.  The person holding the will must file it within 30 days of learning of the death .  A petition to open probate appoints an executor or administrator .
  2. Notify heirs and creditors.  Once appointed, the representative notifies heirs and publishes notice in a local newspaper.  Creditors have six months to file claims , so even simple estates cannot close before this period ends.
  3. Inventory and value assets.  The executor collects and values property and prepares an inventory for the court .
  4. Pay debts and taxes.  Debts, taxes and administrative expenses are paid before heirs receive anything ; unresolved debt or tax issues can extend the timeline .
  5. Distribute property and close the estate.  Once obligations are satisfied and the claims period has expired, the remaining assets are distributed and the court approves a final accounting.

Because creditors have six months to present claims and the executor must complete inventories and tax filings, most Illinois probate cases take six to twelve months .  Complex estates with business interests, multiple properties or contested wills often take longer—ten to eighteen months or more .  


Factors that influence the timeline

Several issues can slow or speed probate:

  • Estate complexity.  Estates with real estate, business interests or out‑of‑state property take longer to inventory and value .
  • Record keeping.  Missing documents and unclear titles delay the executor’s work.  Lawyers advise families to keep financial records organized and asset lists updated to avoid common probate pitfalls .
  • Debts and taxes.  The six‑month creditor claim period is mandatory .  Estates with significant debts or complex tax obligations require more time to resolve .
  • Disputes.  Litigation over a will or asset distribution can extend the process for years.
  • Lack of a will.  Intestate estates require the court to determine heirs and appoint an administrator , often causing additional delays.


Tips to keep probate moving

While you cannot shorten the statutory waiting periods, you can take proactive steps to prevent unnecessary delays:

  • Organize documents.  Keep wills, deeds, account statements and tax returns in a safe but accessible location.  Organized documents help executors avoid searching for paperwork .
  • Communicate early.  Sharing estate plans and holding family meetings can prevent misunderstandings and disputes .
  • Meet deadlines.  File the will, petition and notices promptly .  Heirs should stay informed about the executor’s progress and request copies of filings.
  • Hire professionals.  Experienced probate attorneys ensure paperwork is done correctly and on time .  Financial advisors can assist with asset valuation and tax planning .
  • Plan ahead.  Creating a clear, valid will and updating it regularly avoids intestacy problems .  Estate‑planning tools like trusts and beneficiary designations can bypass probate entirely .


Avoiding or minimizing probate: Strategies to Simplify Probate

Many people use estate‑planning techniques to reduce the need for probate.  Common strategies include:

  • Revocable living trusts.  Assets placed in a revocable living trust during your lifetime pass directly to beneficiaries without probate, providing privacy and faster distribution .
  • Joint ownership.  Property held in joint tenancy or with rights of survivorship automatically goes to the surviving owner without probate .
  • Beneficiary designations.  Naming beneficiaries on retirement accounts, life insurance and payable‑on‑death accounts ensures these assets pass directly to heirs.
  • Transfer‑on‑death deeds.  Illinois allows transfer‑on‑death deeds for real estate, which let you name a beneficiary who will inherit the property automatically .
  • Small estate affidavit.  As mentioned, estates worth $100,000 or less with no real estate may avoid probate altogether using this affidavit .


Conclusion

The Illinois probate timeline can feel daunting, but understanding the process helps families prepare.  Most estates close within six to twelve months , although larger or disputed cases can take much longer .  The length depends on the estate’s complexity, the accuracy of records, outstanding debts, family disputes and whether a valid will exists.

Organizing documents, maintaining clear communication, meeting deadlines and working with experienced professionals can make probate smoother and more predictable.  Even better, proactive estate planning—such as establishing trusts or joint ownership and keeping beneficiary designations current—can help you avoid probate altogether.  By taking these steps today, you ensure a more efficient and faster Illinois probate timeline for your loved ones when the time comes.

Ready to Take Control of Your Estate Plan?

Contact Palley Law Office today to schedule a free consultation and discover how to simplify probate and save your family time and expense.

Probate Fees vs. Trust Setup Costs: What You Need to Know

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When planning your estate, one of the biggest questions is whether to rely on a will or create a living trust. Both options help direct how your assets are passed on, but the financial impact can be very different. Probate fees in Illinois often surprise families, while trust setup costs can feel like a bigger upfront investment. Understanding the difference can help you make a decision that protects both your legacy and your loved ones.

Like all content on this website, this article is informational in nature, and is not to be relied upon as legal advice.


What Are Probate Fees in Illinois?

Probate is the court process required to settle an estate after someone dies. Even with a valid will, most estates must pass through probate unless they qualify for Illinois’ small estate affidavit (for estates under $100,000 without real estate).

Typical probate fees may include:

  • Court filing fees
  • Executor compensation
  • Attorney’s fees (often billed hourly or as a percentage of the estate)
  • Appraisal and accounting fees

Because probate can take months or even over a year, these costs add up. For a modest estate, probate fees might range from several thousand dollars to tens of thousands, depending on complexity.


What Does It Cost to Set Up a Trust?

A revocable living trust avoids probate by transferring assets directly to beneficiaries under the trustee’s management. The main expense is upfront legal work.

Trust setup costs typically include:

  • Attorney’s fees to draft the trust and related documents
  • Recording fees if real estate deeds need to be transferred into the trust
  • Occasional updates if your circumstances change

For many Illinois families, the cost of establishing a trust ranges from $2,000–$5,000, depending on the size of the estate and complexity of the planning. Unlike probate, there is no ongoing court supervision, so costs after setup are minimal.


Probate Fees vs. Trust: A Cost Comparison

Here’s how the two options stack up:

FactorProbateTrust
Timing of CostAfter death, during estate administrationUpfront, while you are living
Total Cost Range$5,000–$15,000+ (varies widely)$2,000–$5,000 (mostly upfront)
Court InvolvementRequiredAvoided
Ongoing FeesPossible (attorney, court, executor)Minimal, usually none


Other Considerations Beyond Cost

While comparing probate fees vs. trust setup costs is important, money isn’t the only factor:

  • Time: Probate in Illinois often takes 9–12 months; trusts transfer assets much faster.
  • Privacy: Probate is a public court process; trusts keep your estate details private.
  • Control: Trusts allow more flexibility, such as planning for minors, blended families, or special needs.


Conclusion

Every family’s situation is unique, but one fact is clear: probate fees can be higher and less predictable than the upfront cost of creating a trust. Many Illinois families choose a trust because it not only avoids probate but also provides peace of mind, privacy, and smoother asset transfers.

If you’d like help comparing your options and understanding what makes sense for your family, contact Palley Law Office for a consultation.

The High Cost of Not Having an Estate Plan

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Many people assume that estate planning is something they can put off—or that it’s only necessary for the uber-wealthy. But the reality is that not having an estate plan carries significant costs, both financial and emotional. These costs can affect your family’s financial security, cause unnecessary stress, and in some cases, permanently damage relationships.

Let’s look at three Illinois case studies that illustrate the risks of leaving your legacy to chance.

As with all content on this website, this post is informational in nature, and is not to be relied upon as legal advice.

Case Study 1: Married Couple in Their Early 30s

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  • Husband and wife, ages 32 and 30
  • Two young children (ages 4 and 1)
  • Primary residence worth $400,000
  • $250,000 in combined 401(k) accounts

What happens without an estate plan?

If this couple dies without a will or trust, Illinois law decides who manages their estate and who raises their children. Since minors can’t inherit outright, the children’s share of the estate would likely be placed in a court-supervised guardianship. A judge—rather than the parents—would decide who manages those assets. The surviving spouse could face expensive court oversight to access funds for everyday expenses, and if both parents die, the court will also decide guardianship of the children.

The costs:

  • Financial: Guardianship proceedings are costly, with court fees, attorney involvement, and mandatory accountings. Money that could have gone to the children may be eaten up by administrative expenses.
  • Emotional: Perhaps the greatest risk here is intangible: if both parents pass away, the children’s guardians may be chosen by the court, not the parents. This can create painful disputes among relatives and may not reflect the couple’s wishes. The uncertainty adds stress to an already devastating situation.

With an estate plan, this couple could:

  • Name guardians for their children in advance, avoiding family conflict and court intervention.
  • Create trusts for children so funds are managed responsibly and released at appropriate ages.
  • Ensure the surviving spouse has uninterrupted access to assets without going through probate.

Case Study 2: Married Couple in Their Early 60s

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  • Husband and wife, age 62 and 61
  • Three adult children
  • Primary residence worth $750,000
  • $1 million in investment assets

What happens without an estate plan?

If this couple dies without a will or trust, Illinois intestacy laws dictate how assets pass. The surviving spouse does not automatically inherit everything. Instead, the spouse receives half the probate estate, and the three children split the other half.

That means the surviving spouse may suddenly find themselves sharing ownership of the family home with their children—something that can create conflict or even force a sale of the home. The investment accounts would likewise be split, potentially leaving the surviving spouse with less financial security during retirement.

The costs:

  • Financial: Legal fees for probate can easily run into tens of thousands of dollars, especially if disagreements arise. Assets remain tied up for months or years.
  • Emotional: The surviving spouse may feel betrayed or unsupported when assets they assumed were “theirs” are divided. Sibling disagreements may arise over whether to sell or keep the home. Family harmony can fray under the strain.

With even a simple estate plan—such as a will and revocable trust—this couple could avoid probate, ensure the surviving spouse is financially secure, and prevent unnecessary family conflict.

Case Study 3: Married Couple in Their Mid-70s

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  • Husband, 76, and wife, 74
  • Combined estate of $9 million (real estate, investments, retirement accounts)
  • Two adult children from the marriage
  • Husband has one adult child from a prior marriage

What happens without an estate plan?

Without proper planning, this couple risks both tax inefficiency and family conflict. Their estate exceeds the Illinois estate tax exemption (currently $4 million per person in 2024). Without strategies like credit shelter trusts or gifting, a substantial estate tax could apply.

Additionally, blended families face unique challenges. In Illinois, intestacy law could leave the husband’s child from his prior marriage entitled to a share of his estate at death—potentially straining relationships between the step-siblings. If the surviving spouse later changes her estate plan (or has none), the husband’s child could be unintentionally disinherited.

The costs:

  • Financial: A poorly planned estate of this size may pay hundreds of thousands in estate taxes that could have been minimized or avoided. Litigation between heirs is more likely, adding to costs.
  • Emotional: Stepchildren and biological children may clash over inheritance. A lack of clarity can cause long-lasting rifts among family members who may never reconcile.

Through a carefully designed estate plan—including trusts, marital deductions, and charitable strategies—this couple could preserve family wealth, minimize taxes, and ensure that all children are treated fairly.

The Bottom Line

The true cost of not having an estate plan isn’t just measured in dollars—it’s also measured in stress, delay, and damaged family relationships.

Whether you have a young family, are approaching retirement, or are managing significant wealth, planning now saves your loved ones later. By taking the time to create a will, trust, and related documents, you gain peace of mind knowing your family will be cared for and your legacy preserved.

Take the Next Step

At Palley Law, I help families throughout the Chicago area create estate plans that fit their lives and protect the people they love. No matter your stage in life, the best time to plan is now—before the unexpected happens.

Schedule a consultation to start building your plan and safeguarding your family’s future.

Learn how to protect and pass on cryptocurrency in your estate plan.

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Cryptocurrency has become a mainstream investment class. Not just tech enthusiasts, but everyday investors and families increasingly look to Bitcoin, Ethereum and other digital assets to diversify their wealth. Cryptocurrency estate planning is a must for holders of digital assets. Unlike traditional assets—such as real estate, bank accounts, or securities—cryptocurrency presents unique challenges when it comes to estate planning. Because it exists in a decentralized, encrypted system without a central authority, planning for its transfer at death requires special care.

For estate planning clients, failing to properly document cryptocurrency holdings can mean that valuable assets are lost forever. For attorneys, understanding how cryptocurrency fits within wills, trusts, and probate is critical to helping clients protect and pass on this form of wealth.

As with all content on this website, this article is educational in nature, and is not to be relied upon as legal advice.


What Makes Cryptocurrency Different?

At its core, cryptocurrency is a digital asset secured by cryptography and recorded on a blockchain. Possession of the private key (a string of alphanumeric characters that grants access to the digital wallet) establishes ownership, not a paper certificate or an account statement.

Unlike other digital property, cryptocurrency is not linked to a central bank or financial institution. This means:

  • No central authority can recover lost access. If the private key is lost, the cryptocurrency is effectively gone.
  • Anonymity and privacy make it difficult for executors or heirs to identify the existence of assets without disclosure by the owner.
  • Volatility and complexity add urgency to securing a clear plan for management and transfer.

These characteristics make advance planning essential.


Estate Administration Challenges with Cryptocurrency

coins and padlocks on a desktop conveying securing assets through trusts


1. Accessing the Assets

For a traditional bank account, an executor provides a death certificate and letters of office to gain access. For cryptocurrency, the executor must have the decedent’s private key or account login credentials. Without this information, the digital wallet is impenetrable.

Some exchanges, such as Coinbase, have procedures for granting heirs access to accounts after death, but this still requires court documents and proof of death. Importantly, if cryptocurrency is held in a personal wallet (not on an exchange), there is no intermediary—only the private key matters.


2. Valuation

Despite its name, the U.S. Internal Revenue Code treats cryptocurrency as property, not currency or cash. During the owner’s lifetime “spending” their cryptocurrency may trigger capital gains taxes, and at death, the gross value of the estate includes the fair market value of the cryptocurrency. Given the price volatility of Bitcoin and other coins, this can create both estate tax and reporting complications.


3. Probate Considerations

In Illinois, as elsewhere, cryptocurrency is part of the probate estate unless transferred outside probate. If the owner dies intestate and no one knows about the holdings, the asset may never be claimed. Conversely, including cryptocurrency in a trust or making lifetime transfers can provide more security and privacy.


Best Practices for Cryptocurrency Estate Planning


1. Maintain an Updated Inventory

You should keep a secure, up-to-date list of cryptocurrency holdings, wallets, and exchange accounts. This should include:

  • The type of currency held (Bitcoin, Ethereum, etc.)
  • Where it is stored (exchange account, hardware wallet, etc.)
  • Instructions on how to access it (private keys, seed phrases, or login credentials).

This list should be updated regularly and stored in a safe but accessible place, such as with other estate planning documents, in a secure safe deposit box, or using encrypted password management software.


2. Provide Access Without Compromising Security

The challenge in cryptocurrency estate planning is to balance current security with future access. Options include:

  • Sealed instructions stored with an attorney or fiduciary.
  • A trusted digital executor named in the estate plan.
  • Secure third-party services that allow transfer upon death.


3. Use a Revocable Trust

A revocable living trust can help avoid probate and provide continuous management of digital assets. Trustees should be specifically authorized to access digital accounts under the Illinois Fiduciary Access to Digital Assets Act (RUFADAA), which governs how fiduciaries can access online accounts and digital property.


4. Update Powers of Attorney

A durable power of attorney for property should grant the agent express authority to manage digital assets, including cryptocurrency. This ensures continuity if the owner becomes incapacitated.


5. Consider Tax and Record-keeping Issues

Owners and fiduciaries must maintain accurate records of cryptocurrency purchases and sales, as the IRS requires reporting of gains and losses. Planning ahead can reduce headaches for executors and beneficiaries.


Legal Landscape and Fiduciary Access

Illinois adopted RUFADAA in 2015. The law allows fiduciaries—executors, trustees, and agents under a power of attorney—to access digital assets if expressly authorized by the estate planning documents. Without such authorization, even a duly appointed executor may be unable to gain access.

This makes it critical to include clear digital asset provisions in wills, trusts, and powers of attorney. Simply leaving cryptocurrency to a beneficiary without providing the means of access is not enough.


Conclusion

Cryptocurrency estate planning presents both opportunities and risks. Properly planned, it can be passed on like any other asset. Poorly planned, it can vanish into the digital void.

For clients who hold cryptocurrency, estate planning must address three key elements:

  1. Documenting the existence and value of holdings.
  2. Ensuring fiduciaries have legal authority and practical means of access.
  3. Using trusts, powers of attorney, and secure instructions to safeguard assets while preserving security.

As cryptocurrency continues to grow in popularity, attorneys and their clients must be ready to integrate digital assets into comprehensive estate planning strategies.

Lost keys mean lost cryptocurrency. Make sure your digital assets are safe for the next generation. Schedule a consultation with Palley Law to discuss your estate plan.

Estate Planning for Parents in Illinois: Protecting Minor Children

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As parents, we naturally spend a lot of time thinking about our children’s future — their health, education, and opportunities. But one area many families overlook is what happens if children are left without parents before they’re adults. Who would raise them? How would their inheritance be managed?

In Illinois, estate planning isn’t just about passing on property. It’s also about protecting your children in the event of the unexpected. This guide walks Illinois parents through the key considerations when planning for minor children, from financial management to naming a guardian.

The information in this post is educational in nature, and is not to be relied upon as legal advice. Engage an estate planning attorney for help with your particular circumstances.


Why Planning Ahead Matters

Under Illinois law, children under 18 cannot legally control money or property. Even at 18, many parents feel that’s too young for a child to handle a significant inheritance responsibly. If you don’t make a plan, the probate court will step in — and that can mean added cost, delay, and decisions made by a judge who doesn’t know your family.

By taking time now to write clear instructions into your will or trust, you ensure:

  • Your children are cared for by the people you trust most.
  • Their inheritance is used for their benefit, not wasted or mismanaged.
  • Court involvement is minimized, saving your family time and stress.


Managing Inheritances for Minors in Illinois

There are several tools under Illinois law for handling money or property left to children. Which one is right for you depends on your goals and the size of your estate.


1. Custodianship Under the Illinois Uniform Transfers to Minors Act (UTMA)

One of the simplest options is naming a custodian under the Illinois UTMA. This allows your executor to transfer your child’s inheritance into a custodianship account.

  • How it works: The custodian manages the funds until your child reaches 21. The money can be spent on education, health care, or general support. At 21, whatever remains goes directly to your child.
  • When it makes sense: This is a good option for smaller inheritances or when you trust the chosen custodian to make sound decisions.
  • Downside: At 21, your child gets full control — ready or not. For larger inheritances, some parents prefer a longer timeline.

Plain English translation of typical will language:

“If a child under 21 inherits from me, the executor can put that money in the hands of a responsible adult custodian, who will use it for the child’s needs. When the child turns 21, any remaining money will go to them directly.”


2. Creating a Children’s Trust

For parents who want more flexibility, a children’s trust is often the better choice. A trust lets you set the rules instead of relying on the default law.

  • You choose the trustee. This could be a family member, close friend, or professional trustee.
  • You control the terms. You can decide how funds are used (school tuition, medical care, first home purchase, etc.) and when they’re released.
  • You set the timeline. Instead of everything being turned over at 18 or 21, you can stagger distributions. For example: one-third at age 25, another at 30, and the balance at 35.
  • You can add conditions. Some parents tie distributions to milestones like completing college or maintaining employment.

Example: A parent leaves $200,000 in trust for her two children. The trustee can use the funds for their health, education, and general well-being while they’re growing up. Once each child turns 25, they receive one-third outright; another portion at 30; and the rest at 35. This way, they have support in early adulthood but don’t receive a lump sum at an age when it might be wasted.


Naming a Guardian in Illinois

Money isn’t everything — someone also has to raise your children if you and the other parent can’t. In Illinois, you can name a guardian of the person (who takes care of the child) and a guardian of the estate (who manages the child’s money) in your will.

  • If you don’t name a guardian: The probate court will appoint one. Judges do their best, but their decision may not reflect your wishes.
  • How to choose: Think about who shares your parenting values, who your child feels comfortable with, and who is financially and emotionally able to step in. Always talk with the person before naming them.
  • Naming a backup: It’s wise to list an alternate guardian in case your first choice cannot serve.

Plain English translation of typical will language:

“If my spouse is not living, I want my sister, Ann, to raise my children. If she can’t do it, then I want my brother-in-law, Joe, to take over. I don’t want them to have to buy an expensive insurance bond to serve as guardian.”


FAQs for Illinois Parents

Q: What happens if I don’t plan at all?

A: The probate court will decide both who raises your children and how their inheritance is managed. The money may be tied up until your child turns 18, at which point it’s handed over in full — regardless of their maturity.

Q: Can I name different people to raise my kids and manage their money?

A: Yes. Sometimes the person who’s best to care for your children isn’t the best with finances. Illinois law allows you to separate those roles.

Q: What if I want to provide for stepchildren or nieces/nephews?

A: Unless they’re legally adopted, they won’t inherit automatically under Illinois law. You need to include them specifically in your will or trust.

Q: What about life insurance?

A: Life insurance proceeds can be directed into a trust or custodianship, just like other estate assets. This is an important step if you expect insurance to be a major source of support for your children.


Taking the Next Step

Every family is different. Some parents are comfortable with a simple custodianship that hands money over at 21. Others want the control of a trust that stretches distributions into a child’s thirties. Either way, the most important thing is to put your wishes in writing.

In Illinois, a carefully drafted will or trust not only protects your children’s inheritance but also ensures they are cared for by the people you trust most. It’s one of the most meaningful gifts you can leave them.

If you have minor children, the best time to plan for their future is now. Palley Law helps Illinois families create wills and trusts that protect their children and provide peace of mind. Contact the office today to schedule a consultation and take the first step in safeguarding your family’s future.

Vernon Martin – Appraising Foreign Real Estate for U.S. Estates

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In this post my friend and University of Chicago classmate, Vernon Martin, provides insights into the work he does for American clients with estates that have overseas real estate holdings. Vernon Martin has more than four decades of commercial appraisal experience and has appraised properties on six continents. A former chief commercial appraiser at three national lending institutions and an adjunct professor at California State University, Los Angeles, he has authored numerous professional articles and two books. He holds degrees from the University of Chicago and Southern Methodist University (MSRE) and is a Certified General Appraiser in multiple states.

As with all content on this website, this article is educational in nature, and is not to be relied upon as legal advice.

Appraising Foreign Real Estate for U.S. Estates

In my work as a commercial appraiser, I’m often asked to value properties located outside the United States for use in U.S. estate matters. At first glance, it might seem unusual to send an American appraiser overseas. But in many cases, there are sound reasons for doing so.

Why Hire an American Appraiser for Foreign Property?

Litigation needs

In estate disputes, attorneys often want an appraiser who can testify in U.S. court, in American English, and under U.S. appraisal standards—most commonly USPAP (Uniform Standards of Professional Appraisal Practice). This ensures the valuation meets the evidentiary and procedural requirements of the American legal system.

Tax compliance

For federal estate tax purposes, the IRS requires that valuations be performed by a “qualified appraiser.” While that definition does not exclude foreign professionals, many clients prefer an American appraiser familiar with U.S. tax law. Another practical barrier is that foreign appraisers must include a U.S. Tax Identification Number in their report—something many simply do not have.

Real-World Assignments

Here are a few examples:

  • Corporate campus in Lima, Peru – Appraised for an estate that bequeathed the property to the Church of Jesus Christ of Latter-day Saints.
  • Office building in Seoul, Korea – Involved a family dispute in Orange County, California. My assignment required reviewing a Korean-language appraisal, which I cross-checked against Seoul Municipal Government sales data—using Google Translate.
  • Partial interest in a Gangnam high-rise – Valued a 43% ownership stake, applying a partial interest discount to account for factors such as market risk, property condition, and lack of control. Smaller ownership shares, especially below 50%, typically require steeper discounts due to limited liquidity and decision-making power.
    • Key discount factors included:
      • Market risk (e.g., vacancy rates)
      • Earnings stability
      • Property condition and remaining life
      • Growth potential
      • Asset diversification
      • Management quality
      • Size of ownership share
      • Control limitations
      • Liquidity

A Lesson in Estate Division: German Example

One German decedent split ownership of four rental properties evenly between his sister in Germany and his daughter in the U.S. The result was two heirs holding fractional interests in multiple properties—across two continents.

This approach significantly reduced value. My analysis showed that if the daughter had instead received three entire apartment buildings plus a 25% share of an office building, her total value would have been €2,787,000 rather than €2,270,000—a 23% increase. This underscores the importance of thoughtful estate planning, especially with real estate, so each heir can receive whole, marketable interests.

Contact: 1-323-788-1605 | vernonmartin@aol.com

Gestational Surrogacy and Estate Planning for Male Gay Couples in Illinois: What You Need to Know

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For male same-sex couples in Illinois, gestational surrogacy offers a meaningful and legally supported pathway to parenthood. Illinois law, through the Gestational Surrogacy Act (GSA), recognizes both intended parents as legal parents from the moment of birth, assuming the Act’s requirements are met. However, while the surrogacy process may be secure under Illinois law, it can raise important estate planning questions that same-sex couples should not overlook—especially when only one partner is biologically related to the child.

This article outlines both the legal protections surrounding parentage and why it’s crucial to integrate your family-building journey into your estate plan.

As with all content on this website, this article is educational in nature and is not to be relied upon as legal advice. Consult with an attorney for counsel specific to your circumstances.

Legal Parentage Under the Illinois Gestational Surrogacy Act

Illinois is one of the most favorable jurisdictions in the country for gestational surrogacy. The GSA ensures that intended parents—regardless of sexual orientation or gender identity—are recognized as the legal parents of the child at birth, provided they have a valid surrogacy agreement in place and comply with other statutory requirements.

This means that in a typical arrangement where one partner donates sperm and the couple engages a gestational carrier, both spouses will be listed as legal parents on the original birth certificate.

Yet, despite this clear legal recognition in Illinois, estate planning attorneys are increasingly advising same-sex couples to take additional legal steps, particularly when their estate plans may come under scrutiny in other states or later in life.

Estate Planning Gaps That Surrogacy May Introduce

Even with both names on the birth certificate, there can be estate planning complications, especially if the couple travels, owns property in multiple states, or has extended family members who may challenge the parental status of the non-biological parent.

Key concerns include:

  • Inheritance Rights of the Child – If only one parent is biologically related and the other has not obtained a second-parent adoption or declaratory judgment, there is a risk that in the event of the biological parent’s death, the non-biological parent’s estate plan (or lack thereof) could be challenged regarding that child’s right to inherit.
  • Recognition in Other States – Some states may not fully recognize the parental rights granted under Illinois law. Without a court order (like a declaratory judgment or second-parent adoption), Full Faith and Credit protections under the U.S. Constitution may not apply, leading to complications in guardianship, custody, or inheritance matters.
  • Survivorship and Guardianship – If one parent dies, the surviving parent may face legal obstacles asserting parental rights outside of Illinois, unless their status has been judicially affirmed. This can also affect the designation of legal guardians for minor children in a will or trust.
  • Trust Planning – If only one parent is recognized as the legal parent of the child in another jurisdiction, the child could unintentionally be excluded from inheritance under certain trust provisions, especially those using biological or legal parentage as criteria.

Legal Strategies to Protect Your Family

To mitigate these risks and build a secure future for your child, consider the following legal tools as part of a comprehensive estate plan:

1. Second-Parent Adoption or Declaratory Judgment

    Even though Illinois birth certificates recognize both intended parents, securing a court order affirming both parents’ legal status is a critical layer of protection. This step strengthens your family’s legal foundation and helps ensure that other states will honor your parental rights under the Full Faith and Credit Clause of the U.S. Constitution.

    • A second-parent adoption provides an independent legal judgment of parentage.
    • A declaratory judgment under the GSA or the Illinois Parentage Act of 2015 serves the same purpose without needing to terminate parental rights from the biological parent (since the donor has none under Illinois law when properly severed—see below).

    2. Customized Wills and Trusts

    Estate planning documents should be drafted with the couple’s unique family structure in mind. A well-drafted trust or will can:

    • Clarify each parent’s intent regarding inheritance rights
    • Ensure guardianship preferences are respected
    • Prevent extended family challenges
    • Account for property or trust laws in other jurisdictions

    Planning for Peace of Mind

    Surrogacy is not just a medical or legal process—it’s also the beginning of a new legacy. For male gay couples in Illinois, the legal landscape is supportive, but not always bulletproof, particularly when it comes to interstate recognition and estate planning.

    By working with attorneys familiar with surrogacy and estate law, you can ensure your legal parentage is protected and your estate plan fully reflects and secures your family’s future. Whether through a second-parent adoption, declaratory judgment, or strategic trust planning, these steps help ensure that your child’s rights—and your intentions—are honored in every jurisdiction, at every stage of life.