Michael Helfand

Dying without a will is called dying “intestate.” Illinois, like most states, has an intestate law that spells out what will happen to the estate of someone who dies without creating a will. Basically, after certain creditors get paid, the assets of the deceased are divided according to the plan set by this law. Here is an overview.

First, if the deceased has a living spouse and children, the spouse gets half and the children get the other half. The children of the deceased divide their half equally. If any child is no longer living, that child’s portion goes to their children (the grandchildren of the deceased).

If there are no children, then their spouse receives the entire estate. If there is no living spouse, but there are children, the children receive the entire estate, divided evenly. Again, if any of the children died before the deceased, their children (the grandchildren) get their parent’s portion.

If the deceased is not survived by a spouse or children (or other descendants), then the estate goes to the closest living relatives. Their parents and siblings each get an equal portion. If only one parent is living, they get both parental portions of the estate. If any sibling is deceased, their children get their portion.

If no parents or siblings are living, the estate goes to the grandparents and their descendants, which are the aunts, uncles and cousins of the deceased. The estate is shared equally between the mother’s and father’s side of the family.

These are the people who the law assumes are your closest relatives, not taking into account what the you actually might have wanted. If you fail to make a valid will during your lifetime, the law steps in and your wishes are largely irrelevant.

If no living relatives exist in any of these categories, then the estate can end up as the property of the county where the deceased was living when they died. This is probably why some people say that the state takes your property if you don’t make a will. It’s not entirely true, but in a rare case it is possible.

Written by Michael Helfand

I don’t blame them really, but every day people lend friends or loved ones money on a verbal promise that they will be paid back.  And if they don’t pay you back, the verbal promise is where all of the trouble starts.

In any lawsuit, you have the burden of proving everything you allege.  If your testimony is that money you gave was a loan and the defendant says that it was a gift, who is the Judge to believe?

So if you are going to loan anyone money, no matter their relationship to you and you hope to be paid back some day, you need to put together a promissory note.

It doesn’t have to be that detailed.  “I Joe agree to lend Jane $5,000.  This money shall be considered a loan that needs to be re-paid by January 1, 2014.”  That might not be the greatest example, but if you each sign it then it shouldn’t create confusion as to what the money was for.  Getting it witnessed is even a better idea.  If you Google promissory note sample you’ll find a bunch of free examples.  You don’t need to pay a lawyer to do this properly.

Some people are uncomfortable asking to put the loan in writing because they don’t want to come across as if they don’t trust the other person.  Really??  You are giving them money.  They should be willing to do whatever you want.  It’s not as if you are asking them to do something dumb or illegal.  Can you imagine a bank lending them cash with a verbal promise that they’ll pay it back?  Of course not because that’s not how life really works.

You never lend somebody money or do anything else in life with the thought that you are going to have to sue them one day.  But at the same time, you prepare for the worst case scenario so there is no confusion as to what is really agreed to.  It’s just a smart way to live life and your only way to win a lawsuit if it comes to that.

Written by Michael Helfand

I’ve been somewhat stunned of late by the number of calls I’ve received where someone is alleging a breach of contract.  When I ask them if there is a termination clause, I’ll often hear that there is not.

Since I don’t yet have the contract in front of me, I ask them to look for a specific paragraph while we are talking on the phone.  This is usually when I hear that they don’t have a copy of the contract, but they are pretty sure that there is no termination clause.

Unfortunately you can’t sue someone based on what you think you signed.   You need an actual copy of the contract.

My advice is that before you sign anything, make a copy for yourself.  After you sign, ask for a copy with their signature and yours on it as well and keep it in a safe spot.  Hopefully you never need it, but if you do you’ll be able to make an informed decision with an attorney.

If you are an employee, a copy should be kept in your employment file which under Illinois law you have a right to see at your request.

Big picture is that you can’t file a contract lawsuit without the actual contract itself.  If you don’t have a copy you will be forced to pay a lawyer to file a suit asking a Judge to make the other person turn over a copy to you.  That’s wasted time and money and certainly opens up the possibility of fraud claims.

And if someone won’t let you make a copy or won’t provide you with one, that kind of lets you know ahead of time what type of person or business they are and it’s probably a warning sign not to get involved with them at all in the first place.

Written by Michael Helfand