Category: Resources

How to Get Started Making an Estate Plan

Getting Started

If you would like to get started making an estate plan, you may not know which steps to take first. You will be on good footing if you assess which assets you own, think about your goals, and find a capable lawyer to help.

  1. Assess Which Assets You Own

Before you go see a lawyer to prepare your estate planning documents, it is a good idea to figure out exactly what you own. For example, you may have:

  • Real estate
  • Investments such as stocks, mutual funds, bonds, or ETFs
  • Retirement accounts like IRAs, 401(k)s, or pensions
  • Valuable items such as jewelry or cars
  • Cash

Make a list of your accounts and your assets to bring with you when you meet with lawyers. This will help the lawyer assess your situation and prepare appropriate estate planning documents. Make sure to mention if you own any property in another country or state, and mention if you jointly own any of your assets.

  1. What Are Your Estate Planning Goals?

In addition to listing out your assets, think about your goals. Why do you want to make an estate plan? Are there particular relatives or friends to whom you want to leave inheritances? Are you concerned about future medical problems? Do you want to protect your children? Identifying some basic goals in making an estate plan can help your lawyer address them in the legal documents. Your lawyer may have suggestions about different ways to accomplish the goals.

  1. Finding an Estate Planning Lawyer

Now that you have a better idea of your assets and your goals, it is time to find an estate planning lawyer. Having a lawyer gives you peace of mind that your plan meets legal formalities and can be enforced after you pass away. Moreover, a lawyer can advise you on the best ways to accomplish your goals considering the assets you own. Your lawyer should spend time with you discussing your goals and why you need particular estate planning documents. Look for an estate planning lawyer in your local area that you can trust.

Want to start planning your estate? Local attorney Andrew Szocka, Esq. provides thorough and speedy estate planning help in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Independent Contractor vs Employee

Why it Matters and What You Can do to Classify Your Workers

As an owner of a business, it’s vitally important for you to accurately determine when a worker who contributes services to you is an independent contractor or an employee. If the worker is an employee, you’re required to withhold and pay Social Security and Medicare taxes, withhold income taxes and pay unemployment taxes on top of the salaries you pay.

Alternatively, if the person functions as an independent contractor, you don’t need to reserve or pay any taxes on the wages for him or her. An independent contractor is subject to paying his own Social Security, Medicare, and income taxes. If he or she is arranged as an employee but you have managed the person as an independent contractor, it could be a high-priced blunder for your business.

What’s the Relationship?

Despite the fact that the distinction is typically defined as “employee vs. independent contractor”, there’s really only four potential categorizations for a worker:

  • an employee (common-law employee)
  • an independent contractor
  • a statutory employee (particular independent contractors who, by law, are handled as employees)
  • a statutory nonemployee

Many business proprietors inadvisedly believe that they can directly assign a person to the position of an independent contractor instead of an employee, and leave it at that. In actuality, to settle whether a person rendering a service to your business is an independent contractor or an employee, you need to review the level of control that you apply over the person.

Behavioral determinants

Does the record show that your company has a power to control or direct the worker? A worker is usually an employee when the organization has the oversight to control and direct his production, even if the company doesn’t truly exercise the right to control or direct how the duties are performed. Behavioral constituents include:

Varieties of instructions proffered. A business typically gives an employee clear instructions about how, when and where to operate. The directions might include what equipment or tools to handle, which workers to hire for assistance, where to acquire services and supplies, what duties must be completed by which particular individuals, and what sequence or order to observe when carrying out a task.

Delivering these sorts of preparations to a worker makes it more than likely that he or she will be administered as an employee instead of an independent contractor.

Economic aspects

How much authority does the business possess over the financial factors of the worker’s position? The more command the business holds, the more it’s probable that the person is an employee. Economic elements include:

Notable investment. An independent contractor often has expended an ample investment on the equipment that he utilizes in fulfilling his tasks. Like other aspects, there’s a definite rule towards investments of equipment.

In some industries like construction, workers contribute thousands on the equipment and tools they handle and are still treated as employees, while for other kinds of work done by independent contractors, considerable expenditures aren’t needed.

Evaluating the benefits

A business needs to weigh each of the factors above as they judge whether to negotiate a worker as an independent contractor or an employee. It’s possible that some factors will confirm that the individual is an employee, while other facts will designate the worker as an independent contractor. The major key is to observe the undivided relationship of the worker to the company. Measure the extent or degree of the freedom of the business to control and direct the worker. Thoroughly document all of the factors considered when coming up with your resolution.

Ascertaining whether a worker is an employee or an independent contractor is a demanding task for any business. Obey these rough guidelines and that task will surely become more clear. Our lawyers can help you solve the demanding challenges that often arise in these situations. For more information, speak with one of our attorneys at Andrew Szocka, P.C. for qualified guidance in the Chicagoland area.


***This is not intended to be legal advice and you should consult with an attorney.

Types of Deeds for My Property

Types of Deeds for My Property

When you are getting ready to buy or sell your real estate, you may hear discussions about the deed to the property.  You may have some questions regarding the deed and its purpose. Many people are surprised to find there is more than one type of deed which can be granted to you, and each deed has different warranties. It is important to have an attorney with you to make sure you are getting a clean and correct deed.

In real estate transactions there are three main types of deeds which you may encounter. A general warranty deed, a special warranty deed, and a quit claim deed. Each are independent of each other and each promise different warranties to the buyer.

Quit Claim Deed

A quit claim deed offers the least amount of protection for home buyers. A quit claim deed does not provide a warranty of title. It does not even guarantee that the person transferring you the land, actually owns the land. A quit claim deed does not guarantee that there is nothing encumbering the property. This means, if the previous owner did not pay a tax bill, a tax lien could be placed on the property. The grantee of the quit claim deed has no recourse against the grantor because a quit claim deed makes no guarantee. You may be thinking, why would one even use a quit claim deed to begin with? A quit claim deed is easy when there is no uncertainty about ownership. For example, a recently married couple may want to add the new spouse’s name to the deed, or you would like to add a family member to your deed.

Warranty Deed

A warranty deed is the most common deed in a real estate transaction. A warranty deed warrants more than a quit claim deed.  For example, a warranty deed warrants the grantor has a valid interest in the property, the property is free of any incumbrances and the grantor promises they will defend title to the property against anyone who makes an unlawful claim. A warranty deed is a good option for buying a home because it allows protection on the property.

Special Warranty Deed

Another common deed is the special warranty deed. A special warranty deed however, only protect against any claims that arose when the Seller had the property. It does not protect against any claims or liens from the previous owner before the grantor. A special warranty deed is often done for homes with new construction or homes bought at a foreclosure sale. It is important you speak with a qualified attorney to go over your options and your protections any time you buy or sell a home.

What is Title Insurance and do I need it?

What is Title Insurance and do I need it?

What is Title Insurance?

Title insurance protects home buyers and mortgage lenders against defects in title. Title is a document which shows legal ownership of a property. Title will show past ownership, past transfers, any liens or encumbrances on title. In a real estate transaction, a title search will more than likely be performed on the property. In most cases, before the real estate property can be transferred, the search must show a good clean title, free of defects which could affect ownership. There are two types of title insurance.  A lender’s policy which protects the lender’s interest in the property and an owner’s policy which protects the homeowner’s interest in the property for as long as they have ownership.

Do I need Title Insurance?

Even if at the time the title search of the property was performed there appeared to be no defects, this does not mean the property is free and clear.  There could be many issues which may not have been found which could date back to many years before you received ownership. For example, a long lost heir could claim ownership. There could be issues raised regarding forgery on an old transaction that your seller may not have even been a part of. There could even be old liens, ordinance violations or unpaid taxes which encumber the property. For most people, a home is one of their biggest assets. Title insurance protects your home and your interests.  Title insurance is a one-time premium and not a monthly payment you make as with other insurances. Also, title insurance is good for the duration you own your home. This offers you protection from a claim which may have arisen years prior to you owning the property. Having to bear the burden of legal fees could costs thousands of dollars. Having a one-time premium for title insurance can give you peace of mind.

Title Insurance Costs?

Title insurance ranges by states. There are many factors which go into deciding how much title insurance will actually costs.  One of the biggest factors is how much the house costs, as larger loan could mean a larger loan payout. As with any type of insurance, title insurance costs more depending on the cost of the property. Usually Seller’s attorney chooses the title company, however, you do have the right to shop around. Title insurance is a one-time payment which could save you thousands of dollars and protect your interests.

SUBROGATION: ITS APPLICATION BY ILLINOIS COURTS.

SUBROGATION: ITS APPLICATION BY ILLINOIS COURTS.

 In Illinois, the general rule is that lien priority is awarded to whoever records a lien against property first.  This concept is often referred to as “first in time, first in right.”  UnionBank v. Thrall, 374 Ill.App.3d 785, 788 (2nd Dist. 2007); Union Planters Bank, N.A. v. FT Mortgage Companies, 341 Ill.App.3d 921, 924-25 (5th Dist. 2003).  If the property encumbered by the lien is eventually sold, the proceeds first go to the holder of the first lien recorded.

But there are exceptions to “first in time, first in right.”  Indeed, “blind adherence to the first in time, first in right doctrine is sometimes insufficient to determine lien priority.”  Id. at 925.  One such exception is called subrogation.  Subrogation may be a useful tool in resolving a lien priority case where another party is claiming its lien is superior to that of your client.

Illinois recognizes two forms of subrogation, equitable subrogation and conventional subrogation.  The differences are clearly distinguished in Aames Capital Corp. v. Interstate Bank of Oak Forest, 315 Ill.App.3d 700 (2nd Dist. 2000).

Equitable subrogation is a creature of chancery used to prevent unjust enrichment.  Id. at 706.  To establish equitable subrogation, the equities must be in favor of subrogating the movant into the priority position of the lien holder who the movant paid off.  Id.  The court looks at all of the facts of the case to determine if the mortgagee is entitled to a first lien position by virtue of equitable subrogation.  Id.  Equitable subrogation’s application is considered to be rarer than that of conventional subrogation.  LaSalle Bank, N.A. v. Cypress Creek 1, LP, 242 Ill.2d 231, 260 (2011) (dissenting opinion).

Conventional subrogation can occur when a mortgage pays off a prior lien.  The mortgage may be entitled to the priority enjoyed by the prior lien in the amount of the payoff.  Aames Capital, 315 Ill.App.3d at 706.

Another Illinois case that examines conventional subrogation is Union Planters Bank, N.A. v. FT Mortgage Companies, 341 Ill.App.3d 921 (5th Dist. 2003).  Conventional subrogation first requires an express agreement between the parties that the party paying the prior creditor will be able to assert the rights of the prior creditor.  Id. at 925.  In Union Planters Bank, the court examined whether the defendant’s mortgage could be subrogated into a priority position through conventional subrogation.  341 Ill. App. 3d 921 (5th Dist. 2003).  The plaintiff argued that the defendant had no express agreement allowing it to assert the rights of the original creditors.  Id. at 926.

The Union Planters Bank court found that the form of the language in the contract was not as important as the intent of the parties to the contract.  Id.  The court further determined that it was clear the defendant intended to receive equal priority in its lien and be able to assert the rights of the mortgages it paid off in the refinance.  Id.  Ultimately, the court held that the defendant could be subrogated to the position of the prior liens.  Id. at 927.

In addition, many modern mortgages include express language related to priority, namely the language “borrower shall promptly discharge any lien which has priority over this Security Instrument . . .”.  This phrase is sometimes found in the “Charges; Liens” paragraph of the mortgage, or paragraph 5 in the “Uniform Covenants” section.  It can be argued that this provision indicates an intent between the parties that the mortgagee receives a first position lien.

Conventional subrogation also requires that the loan proceeds were 1) used to refinance the mortgage for which the lender seeks to be subrogated, 2) that no harm will come to an innocent party if priority is granted to the lender, and 3) that there has been no gross negligence.  Id. at 925.

A party with an intervening interest is not necessarily harmed by conventional subrogation.  Id.  The Union Planters Bank court ruled that the intervening lienor had constructive knowledge of the prior mortgage when the intervening lienor recorded its judgment.  Id. at 927.  As a result, subrogating the new mortgage into the position of the prior mortgage placed the intervening lienor in no worse of a position.  Id.

 

For additional reading on equitable subrogation and conventional subrogation see:

 

Wilmington Savings Fund Society, FSB v. Zarkhin, 2019 IL App (2d) 180439;

Lobo IV, LLC v. V Land Chicago Canal, LLC, 2019 IL App (1st) 170955; and

PBEI Holdings, LLC v. First Nat. Bank of Dieterich, 2015 IL App (4th) 140850-U (unpublished opinion).