In the matters of Real Estate and Estate Planning and Probate many of the same concerns and questions come up when contemplating seeking legal advice.
As a quick reference, Sue has provided these FAQs to assist you in gaining more knowledge about these areas. Please contact Sue to find out how this information will impact your particular situation.
REAL ESTATE
What are Some Key Issues to Consider When Reviewing a Contract to Purchase Property?
Few people realize that the purchase contract is the most important step in purchasing a home — the details of this agreement determine what you buy and how you buy it.
Before signing, read the agreement carefully and consider the following (the following is not a complete list of issues but is intended to give the reader a good start on things to consider):
- Is the purchase contingent on matters such as the availability of financing on acceptable terms or the sale of the house which you presently own?
- Exactly what land, buildings and furnishings are included in your offer? Are stove, refrigerator, window coverings, chandeliers, etc., included?
- What details regarding payments are stated?
- When can you take possession?
- Is the seller to furnish you with a good, marketable title?
- Should a surveyor be used to find out if the improvements are actually located on the property? Who pays for the cost of the survey? Should a surveyor be used to determine the actual boundary lines and exactly where the improvements were made?
- What inspections are recommended and which party will pay for them? Will there be a home warranty contract and which party pays for it?
- If a loan is to be obtained from an outside lender, who will pay the lender’s closing costs?
- Are there any restrictions on the use of the property?
- If your offer is accepted, what steps should be taken with respect to insuring the improvements to protect you pending the final closing?
- What persons (such husbands and wives) are required to sign the contract and other documents?
- Who is responsible for paying real taxes and how are such taxes to be prorated?
- What are the consequences if the buyer or seller defaults?
- Who pays real estate broker’s or agent’s fee?
- Whose responsibility is it to pay for special assessments that arise prior to closing?
Am I Required to Use an Attorney When Selling My Home?
The level of involvement of the attorney in the sale of your home differs in each state. In Illinois, attorneys are very involved in real estate transactions, including negotiating modifications of the contract terms, monitoring deadlines, preparing documents and attending the closings. In order to best protect your rights, it is advisable to work with an attorney who is experienced in real estate matters, which are usually more complicated than most clients realize. Your attorney is always your advocate during the preparation, review and execution of legal documents.
Do I Need a Contingency Provision if I Have to Sell My Existing Home Before I Purchase a New Home?
Yes. If you need the funds from the sale of your existing home, you should be sure that you provide for such contingency in your contract to purchase the new home. With a properly drafted contingency, you will not be obligated to purchase your new home until your existing home sells.
Should I Buy My New Home and Sell My New Home in the Same Day?
If you can afford the luxury of purchasing your new home first, it will allow you to make a smoother , less stressful transition.. You can do a simultaneous transaction when you close the sale of your existing home earlier in the day and purchase your new home several hours later. However, you may want to schedule the sale of your existing house a week or several days before the purchase of your new home to allow for the possibility that the buyers of your existing home ask for a short extension. This short delay insures you can close on the sale of your home before you go to close on the purchase of your new home.
What Costs Are Associated with the Sale of a Home?
Some of the costs incurred in the sale of a home include, repair expenses to get your home ready to sell, sales commissions to realtors, title insurance and closing costs from the title company, closing costs that you offer to pay on behalf of your buyer, legal fees for your attorney to prepare documents and represent you at the closing, and your moving expenses.
What Agreement Do I Sign with the Real Estate Agent When Selling My Home?
Typically, the real estate agent will have you sign a listing agreement. The listing agreement is a contract between you and the real estate agency that sets the commission you agree to pay the real estate agency and the terms of the contract with the real estate agent. It some cases, it is advisable to have your attorney review the listing agreement on your behalf to give you a better understanding of the document, its terms, and your obligation.
When Should You Consider Selling Your Home Yourself?
Selling your own home requires a much greater amount of time and efforts. A For Sale By Owner (FSBO) transaction will require that you market your home yourself and negotiate your own contract. Setting the price of your home can be tricky. The price will depend on the current market, what your home has to offer and how quickly you want to sell. In the event you become a FSBO seller, you should always use an attorney to assist in preparing the real estate contract and disclosures in addition to the other services described above.
ESTATE PLANNING & PROBATE
Do I Need a Will if I Don’t Make A Lot of Money?
Everyone who has minor children needs a Will. A Will allows them to choose the guardian who will care for their children after their death. Everyone who cares about what happens to their money or property after their death needs a Will.
What Must I Consider When Planning My Estate?
When you meet with an Estate Planning Attorney, it is important that he or she be made aware of your entire family and financial situation. Your assets include not only your home, car, and bank accounts, but also the value of any life insurance policies you own, investments, (including those owned jointly with others) retirement accounts, among others. It is important to inform your Attorney of any special circumstances, such as a disabled child or a spouse receiving government benefits, for example. Also make certain that the Attorney reviews any trust document that establishes a trust of which you are the Grantor, Trustee or Beneficiary. Such trusts may affect the estate planning necessary for your particular situation.
What Decisions Will I Have to Make?
Estate Planning involves many decisions. For example, questions you should decide include: Should my spouse inherit all my assets? Will my spouse be capable of managing the assets he or she inherits from me, or should the assets be placed into a trust? If the assets are placed into a trust, should the trustee be a relative or personal friend, or should a corporate trustee manage the trust? Who will be the Executor of my estate? Do I want to make any specific bequests to non-family members or charities? One you have made these decisions, among others, your Estate Planning Attorney will be better able to advise you regarding your own Estate Plan.
What About Planning for Disability?
Part of Estate Planning includes considering and making known your wishes concerning health care. You will need to decide who will be your agent regarding your health care and finances in the event you can no longer make health care and financial decisions yourself. To ensure that your wishes are followed, your Estate Plan will include a Health Care Power of Attorney, and Living Will. You should also give thought to long-term care planning. Will you be able to pay for long-term care by using your private funds, or is a long-term care insurance policy best for you? Alternatively, could you qualify for Medicaid, which would assist in paying for your long-term care cost?
What is Probate?
Probate is a Court proceeding where the judge will determine whether the Will is valid. If your Will is valid, then the judge will appoint an Executor (usually nominated in your will). Once your Executor has been appointed by the Court, he or she must begin collecting and safeguarding your assets, paying all your final bills and taking care of other obligations of the estate according to the provisions of your Will and State law.
If a person dies without a Will, the judge will appoint an executor from among the relatives. Assets will be distributed according to state the law rather than the wishes of the deceased.
What are the Responsibilities of the Executor?
The Executor must identify and locate all your assets so that such assets may be valued. Property requiring valuation includes stocks, bonds, life insurance, real estate, and any interest in a closely held corporation or partnership, among others. The Executor is responsible for paying expenses such as taxes, medical bills and funeral costs. Finally the Executor is responsible for distributing the assets appropriately.
Additionally, the Executor and/or his professional advisors must determine whether final Federal and State income tax returns must be filed. The Executor might also have to file Federal and State estate tax returns and Federal and State Fiduciary Income Tax Returns.
If you are married, there are several legal techniques that will help to minimize estate taxes owed at your death. It is important to contact a qualified Estate Planning Attorney to make certain all the available tax planning tools are being used to your advantage.
