The reliance and use of online wills and estate planning tools is a common practice among American Muslims. Often, they are used to fulfill important obligations outlined by Islamic law. However, there are many reasons to avoid online wills. We have listed 5 simple reasons why you should avoid online resources for creating your Will and Last Testament and Estate Plan.
1. Online Wills Are Not Conformed to U.S. and State Laws
Most Online Wills, especially Wills written specifically for Muslims, are not state specific. Each state has its own guidelines about the proper form, process, and certification. A Will valid in one jurisdiction may not necessarily be valid in a different jurisdiction.
Online Wills generally make no accommodations for state laws and guidelines. Rather, Online Wills are written purposefully broad to capture the largest audience possible.
An attorney with knowledge of U.S. and state specific laws can guide you on the procedure, language, and certification that ensures a Will is valid in your jurisdiction.
2. Professional Guarantees
An attorney commits to years of education and tutelage to be qualified to draft your Will and Last Testament. An attorney is able to ensure that your estate plan fulfills the testator’s wishes and avoids potential conflicts. More importantly, in many states, such as Illinois, the attorney can be held professional responsible for defects in a Will and Last Testament discovered after the death of the testator. If the Will is invalid or contested, your beneficiaries can address these concerns and potentially obtain damages from the attorney drafting the estate plan.
With an Online Will, you have no guarantee the drafter is a legal scholar or a 10th grader with too much time on his hands. An Online Will is unable to plan for potential conflicts. If you discover mistakes after the death of the testator, your beneficiaries will have no recourse.
3. Customization
Each individual is in a different financial and family situation. Online Wills are not customized to address the differences or accommodate special needs. Online Wills will not give you guidance on meeting your goals. Online Wills cannot identify potential problems, areas of conflict, and concerns. Each of these issues can be addressed by a qualified attorney.
4. Mixing Islamic and U.S. Law
An Islamic Will must be a carefully crafted document that incorporates both the relevant facets of Islamic Law in a method that will be enforced in U.S. Courts. Online Islamic Wills often liberally and vaguely make references to Islamic law.
Islamic law, itself, is a rather massive body of law littered with dissenting and minority opinions. While most scholars will disavow minority and superfluous opinions on Islamic legal matters, U.S. Judges, who will ultimately enforce your estate plan, have no training on this subject. An expert witness testifying to a minority opinion which is contrary to the dominant Islamic ruling could be given the same or greater credence in a U.S. court to a classical Islamic scholar.
Even within the mainstream opinions, there is dissent. The term “Islamic law” itself does not identify sects, fiqhs, or spiritual orders. Sunni Islamic Law and Shi’ite Islamic Law are different bodies of law. Hanafi Fiqh and Sha’fi Fiqh have come to different conclusions on the same topic.
Online Islamic Wills are generally written for mass production so they do not include specificity. If an author of an Online Islamic Will attempts to make the document more specific, it devalues the document created as it attaches itself to a smaller pool of individuals. Therefore, the drafters of Online Islamic Wills have an incentive to be as broad as possible. While this may be good for the drafter of the Online Islamic Will, it is terrible for you.
We previously mentioned that an Online Will is not customized to meet your individual needs. For a Muslim, this is the greatest manifestation of that concern. Only a qualified attorney with experience in both U.S. and Islamic law or who is willing to work with qualified classical scholars can create a document that fulfills your obligations under Islamic law without creating a document that is vague, contestable, and ineffective.
5. Superfluous and Disingenuous Language
Lastly, Online Islamic Wills often contain language that is simply not necessary or even dangerous. Many Online Islamic Wills contain preambles, extra text, and misplaced religious references. You will find the drafter was more concerned with the creativity within the document rather than its efficacy.
Your Islamic Will should only contain language that has a specific legal purpose. Any superfluous language weakens the strength of your Islamic Will.
Online Islamic Wills also contain clauses which revert funds to individuals or different organizations. One prominent Online Islamic Will reverts any undistributed funds in your estate to the organization that promotes the document. Remember, the drafters of these documents have no ethical obligation or professional responsibility to serve your interests. Further, you have no recourse against the drafter if a clause deprives your heirs of a part of your estate.
An attorney can provide those professional guarantees and ensure each word in your Islamic Will serves a specific purpose.
By: Ausaf Farooqi (afarooqi@dupageattorneys.com)
Contact Ausaf for an evaluation of your estate and creation of your will and other estate planning documents.
March Madness, the NCAA College Basketball extravaganza, is a time of excitement in offices around the country. Often, the buzz focuses around bracket parties and betting against other employees in the office. While these wagers may seem harmless, many employers are asking, is this legal?
In short, betting on college sports is illegal in many states outside of Nevada. Of course, that does not stop co-workers for “putting their money where there mouth is.” Office betting in the U.S. was estimated to be worth $2.5 billion dollars in 2008. Twenty-seven percent of American employees were participating in those bets. Of course, the FBI is not arresting every employee who makes a $20 wager on his or her alma mater or another Cinderella team. But in most states, office-gamblers can be slapped with a misdemeanor charge or up to one year in prison for participating in such office pools.
Obviously, the possibility of actually being sentenced or jailed for a bet on the NCAA tournament in an office pool is very low. However, the employer is taking on a greater risk than the employees. If you own a company, you must be aware of the risks is the legal liabilities upon you or your company.
To minimize the risk, employers should implement rules and guidelines for gambling at work. A good way to ensure everyone has understood the procedure is to put in your employee handbook. The employee handbook should discuss all the risks and legal standards of in-office betting. As an employer, if you are completely banning the act of betting, make sure your employees are aware of it and they understand that it is an issue that the company takes seriously.
Although employers can outright prohibit gambling and participation in the NCAA Madness, these events often hold special value to employees. However, bracketing and with stakes can often be an expectation. There are steps you can take to reduce the liability by making the pool free and awarding winners with a variety of prizes and gifts. March Madness should be a time for employees and employers to have fun and enjoy the games while building healthy relationships within the office. So, make sure your pool is safe yet fun by following these simple guidelines.
Authored by: Umer Siddqui (usiddiqui@dupageattorneys.com)
Under the Patient Protection and Affordable Care Act (the “ACA”) physicians and other health care providers are required to report overpayments to Medicare Part A and B providers to the one or many authoritative bodies. This month, the Center for Medicare and Medicaid Services (the “CMS”) proposed rules that further define the reporting requirements for health care practitioners.
Although ACA has been in force for two years, many small health care practices have largely ignored the reporting requirements. The lack of clarity around ACA’s reporting requirement is partly to blame for a widespread ignorance of the law. In response, CMS recently issued proposed rules for enforcing ACA’s reporting requirements.
As currently written, ACA’s places an onerous burden on the health care practitioners to report, document and correct overpayments. Jurists, lawyers and legislators have interpreted the reporting requirements to various degrees. In that respect, the proposed rules are a welcome dose of clarity in the otherwise murky guidelines to ACA’s rules. The CMS highlights the burden by stating that using the mechanisms in place for overpayments, it would take approximately 2.5 hours to return an overpayment. Needless to say, 2.5 hours of time, especially for small business, seriously limits the usually thin resources of a small office.
From a rules perspective, CMS sets forth two key reporting requirements time limits health care practitioners should learn. First, CMS can prosecute overpayments going back 10 years from the date of the payment. CMS probably set this deadline to allow it to prosecute within the then year statute of limitations of the False Claims Act, which gives ACA its teeth. Second, once over payments are discovered, practitioners must report the overpayment within 60 days.
To close the ignorance loophole, the CMS also sets forth due diligence and active discovery requirements that allow it to prosecute undiscovered overpayments. Upon reporting the CMS reports the overpayment to the Office of the Inspector General of Health and Human Services (“OIG”); however, the report is only cataloged at first along with the repayment. CMS has also indicated that overpayments are not prosecuted except for extraordinary circumstances.
If your practice has received overpayments that need to be reported, you must follow the mechanisms set forth by the CMS once the proposed rule becomes law. As a health care practitioner, you may comment on the proposed rule till April 16, 2012. Feel free to contact me if you would like more clarity on the proposed rule or submit comments.
Written by: Moeed Saeed, Esq. (msaeed@dupageattorneys.com)
An annulment, in Illinois, is referred to as a Declaration of Invalidity of Marriage. Unlike divorce, an annulment makes it as if the parties were never married to begin with and the record of marriage is essentially wiped off of the State’s records. Many people would rather have an annulment instead of a divorce, yet only a few circumstances will allow for one. The grounds for annulment are addressed in The Illinois Marriage and Dissolution of Marriage Act, which covers a plethora of topics including, but not limited to, divorce, child support, and maintenance.
There are essentially four grounds for an annulment and each ground also has a time limit. The limited grounds and time limits to get an annulment are the reasons why it is so hard to get one. The following are the four grounds to attain a declaration of invalidity:
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A party lacked capacity to consent to the marriage at the time marriage was solemnized, either because of mental incapacity, infirmity, or because of the influence of alcohol or any other incapacitating substance. Further, a marriage can be declared invalid if a party was induced to enter into a marriage by force, duress, or by fraud involving the essentials of marriage. In order to succeed on this particular ground for annulment the party must bring an action within 90 days of learning of the condition.
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A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity. In order to succeed on this particular ground the party seeking an annulment must do so within one year of learning of the condition.
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A party was aged 16 or 17 years and did not have the consent of his parents, guardian, or judicial approval. An order to succeed on this ground for annulment the party must do so prior to the minor’s 18th birthdays.
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The marriage is prohibited. For example, marriage between parents and children. This ground can be sought at anytime or, by a child of either party within 3 years of the death of the first party to die.
Overall, getting an annulment instead of a divorce is typically not easy. There are a limited number of grounds and also a limited amount of time to file for an annulment. If you are not sure whether or not you qualify to get an annulment contact DuPage Attorneys and we can evaluate your particular situation.
Written by Naveed Husain, Law Clerk (nhusain@dupageattorneys.com)
In casual conversation, trusts seem to come-up as a potential solution for asset protection, estate planning and tax shelters. Although that maybe true, I have found that the why's and how's of trusts seem to be cloudy at best in the lay-person's mind. To clear away some of that cloudiness, I created this brief guide to get you to clear skies, at least as they pertain to trusts.
What is a Trust? In general, a trust is a separation between legal and beneficial title. In order to establish a trust you need a few basic things:
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Trustee – A trustee is the person or entity that has the legal title. The trustee is in charge of the trust and may be required to make monthly payments to beneficiaries, invest the trust property, or find tenants to occupy a house.
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Beneficiary – A beneficiary is someone who benefits from the trust. They may receive payments from the trust income or may get the corpus of the trust at the death of the settler.
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Settlor/Trustor/Grantor – A Settlor is the individual making the trust.
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Trust Property – Almost anything with some present interest may be placed in a trust. For example stocks, cash, a savings account, house, and life insurance can be placed in a trust and satisfy the trust property requirement.
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Trust Purpose- Every trust must also have a purpose. You can’t just put something in a trust and have the money sit there.
So, let’s walk through a simple example. I, the Settlor, put $10,000 in trust and assign my brother as trustee. The trustee will pay to my son income from the trust property of $10,000 every month and upon my son’s death the corpus of the trust will go to my grandson.
In this simple example I am the trustee, the beneficiaries are my son and my grandson, the trust property is $10,000, and the purpose is to provide monthly income to my son.
Why would I want to establish a trust? Well there are many reasons:
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To Avoid Probate – one of the greatest benefits of having a trust is to bypass probate. Whatever is placed in the trust will automatically transfer to the beneficiary without court intervention. This can save time and money.
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Avoid Creditors – Although most states don’t allow a settler to establish a trust to avoid their own creditors, you can make a trust to avoid your beneficiary’s creditors. This area can get complicated and it is important to talk to an experienced attorney.
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Taxes – Having your property or assets placed in trust may also help to avoid estate taxes, gift taxes, and other types of taxes that may be levied on your assets.
What Kind of Trusts Are There? Trusts allow for a lot of flexibility and there are as many types of trusts as there are lawyers. Yet, for brevity I will outline a few basic types of trusts:
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Asset Protection Trust – is a type of trust designed to protect assets from creditors. As mentioned above, you may not be able to protect your assets from your own creditors in certain states yet, you may be able to protect the assets you pass on to your beneficiaries from their creditors.
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Charitable Trust – is a type of trust that has a charitable purpose and one or more charitable beneficiaries.
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Special Needs Trust – is a type of trust that is established for someone who is receiving government benefits. Essentially, this type of trust is used to provide income to a beneficiary without having them becoming disqualified from government benefits
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Spendthrift Trust – is a type of trust that includes a spendthrift provision. This provision gives the trustee discretion when making payments to the beneficiary to avoid the beneficiary’s creditors.
As you can see, trusts are a very valuable and flexible option to include in any estate plan. Trusts can be used to accomplish a plethora of goals and can also save time and money.
By: Naveed Husain, Law Clerk (nhusain@dupageattorneys.com)
disclaimer: This article is not legal advice. Please speak to an attorney for how to establish a trust for your specific needs.
Trusts can also be used to accomodate compliance with religious law, such as biblical, kosherate or shariah-compliance, in many instances. Please contact DuPage Attorneys today to discuss these or other needs. (info@dupageattorneys.com).
When you decide to get married to someone, the last thing you want to think of is a divorce. Stigmas of pre-nuptial agreements are that the bride and groom are marrying for money, that they are only for wealthy people, such as celebrities and that they are unromantic. Although we cannot say nuptial agreements will sweep you off your feet, we can say that settling financial issues ahead of time can help prevent conflicts and tension during and after marriage. There is no ideal time to talk about these agreements, however waiting till the last minute for the wedding to discuss them is not advisable, as they give rise to certain defenses such as duress.
To be clear, pre-nuptial and post-marital agreements are contracts between a husband and a wife determining how to deal with assets in the event of a divorce or even death. Think them as getting insurance – it protects you and your assets. Some of the advantages include:
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Knowing ahead of time who will be responsible for their accumulated debts
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Determining asset preservation for children and other beneficiaries
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Deciding on spousal support
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Protecting stocks, bonds, trusts, retirement funds and insurance benefits
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Would you like your spouse to waive rights of your retirement plan and have your children be the beneficiaries instead?
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Deciding on a choice of law
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If you and your spouse are from different states, which state law would you like to follow?
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Picking procedures to resolve financial circumstances
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Avoiding litigation This is a huge factor in deciding whether or not to file pre or post nuptial agreements. If financial issues are not resolved ahead of time, divorce can be a long and painful process, creating tension, stress and animosity not only between the two parties but also the children involved.
To guide you through the process, technicalities, and to ensure your pre or post-nuptial agreement is valid, hiring an attorney is the best option. Additionally, an experienced attorney can ensure that there is full disclosure between you and your partner. This includes all information about income, assets and liabilities. It is advised that both parties have an attorney of their own to seek their best interest.
If you are interested in drafting a pre or post-nuptial agreement if someone has served you with one, contact us. DuPage Attorneys helped numerous clients with these agreements and are knowledgeable in this area of law. Furthermore, we provide all of our clients with individualized attention and are always available to discuss any questions or concerns that may arise.
Authored by: Shahzeen Karim, Law Clerk (skarim@dupageattorneys.com)
So, you think you can out smart the court and your ex-spouse’s lawyer? Although, its not impossible, chances are you will find yourself in deep trouble if you think you can hide your assets from the court.
In Illinois, courts look very unfavorably on divorce-seekers trying to hide assets to avoid a fair settlement, child support or paying alimony. In legal terms, the hiding or “giving away” of marital assets is called dissipation. More likely than not, the opposing counsel and the court will find out that you were trying to dissipate and will penalize you for it.
There are three common traps that catch unsuspecting dissipaters. Beware!
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Prove It! In many circumstance, divorce-seekers think that their soon-to-be ex-spouse has to prove that they dissipated assets. Burden of proof is a common trap that will get you in deep-water very quickly. In Illinois domestic actions, the burden of proof is on the accused, which is quite the opposite of criminal actions. In short, if you are accused of dissipating assets, you have to prove you didn’t do it!
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Gifting. Once your divorce has been filed, or even before in many cases, gifting your assets to friends or family becomes dissipation. Even if you actually did gift away your assets, the court will decide the financial aspects of the case as if you still own those assets. Basically, putting you in the unenviable position of having to ask for your gifts back. Needless to say, your friends probably will not like that.
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Deterioration. Allowing your assets to deteriorate is a negative dissipation that can anger the courts, as well. One instance is allowing work assets, such as vehicles and tools to fall into disrepair. In a recent case in DuPage County, the courts found that allowing a home to go into foreclosure was dissipation because the home lost value. Deterioration is a lose-lose situation for both parties because both parties suffer financially.
Talk to a knowledgeable attorney about whether what you are doing is dissipation. The best strategy is to work within the framework of the law and avoid being penalized by the court.
Authored By: Moeed Saeed - msaeed@dupageattorneys.com
Child support negotiation or litigation can be stressful to say the least. Keep these simple points in mind to make your experience more bearable. Although some may be obvious, divorcees tend to forget the seemingly obvious steps due to the overwhelming nature of the experience.
1) Who’s the father? – If your ex-spouse’s name is not on your child’s birth certificate, establish paternity or legal fatherhood to secure payments. This can be done with a DNA test.
2) Know where he resides – This helps giving notices to your ex-spouse much easier. Additionally, keep in touch with his friends and family. You can find out a lot of information through them, such as whether he has changed jobs, or is planning to move out of state.
3) Be courteous – It may be tempting to throw a fit when the monthly check does not arrive on time, or to hold back on his visitation rights. Remember that the courts allow a little leeway when it comes to child support, but if this is regular, learn how to receive the child support on a timely basis. Keep records of when the checks are received. As for visitation, you cannot refuse to let him see the children because he is not paying child support. Depending on the type of custody you have, you may be arrested for violating his right.
4) Keep the children out of it - Telling the child that their father does not pay for their needs hurts the children and does not accomplish anything. Asking them to take the check from their father during their visits with him is also a bad idea because it puts them in the middle.
5) Educate yourself – Know the ins-and-outs of child support law and child support agencies in your state. If your ex-spouse moves, learn the rules and regulations of that state as well. If you hire an attorney, they should be able to explain all the rules pertaining to child support. They can also ensure that your child receives more child support if your husband’s income has increased.
Our goal is to help you and ensure a secure future for your children. If you have any child support payment issues and you need legal help, contact us today.
Written By Shahzeen Karim (skarim@dupageattorneys.com)
In our article “Why is Estate Planning Necessary? Part 1” we discussed some general aspects about estate planning and also posed four concerns. You can view that article here.
I have few assets, why do I need an Estate Plan?
First, many of the goals above do not refer to wealth or assets. There are many non-financial reasons to plan your estate which are just as important, in some cases, as the financial motivations. Second, even if you have a small amount of assets, you still are required to fulfill Islamic inheritance obligations. This can only be done through creating a proper estate plan that is valid in the state of Illinois. Third, we often underestimate and undervalue our estate. Fourth, your estate is not static and can increase quickly and unpredictably.
If you feel that you have a small estate, the best course of action is to at least attend a free consult with a qualified attorney. The attorney can look at your assets and give you an honest opinion about the size of your estate and the kind of estate planning tools you will need.
All my assets transfer to my spouse automatically, why do I need to estate plan?
As previously mentioned, assets are not the only part of an estate plan. Even if your assets transfer automatically, there are still other non-financial aspects of the estate plan that you should address. In addition, you are still required to examine the Islamic inheritance rules and ensure you are not depriving any beneficiaries of their right of inheritance. It is also important to note that even if your assets transfer automatically, they are still subject to estate taxes. There are easy ways to avoid this if you have a valid Estate Plan. It’s also important to remember that (1) you have no idea which spouse dies first and (2) your spouse will eventually pass away and require an estate plan.
I downloaded my will off the internet, why do I need to estate plan?
This is the most common and most disastrous objection to creating a proper Estate Plan. To put it simply, you get what you pay for with online and non-legal applications. You may pay very little to no money but you are also given no security or validation that your Estate Plan is properly completed.
Did you certify your documents properly? Was the attestation valid in the state of Illinois? Are the powers invoked proper in the state of Illinois? Are any of the clauses against the public policies of the state of Illinois? Did you properly structure your will to fulfill Illinois and Islamic regulations? The list of questions attached to online will making are endless. Most online wills are not a sufficient substitute for your Estate Plan. Even more importantly, there are many estate planning goals which online applications simply cannot accomplish, such as estate tax planning.
Estate planning is just too complicated. I want something short, sweet, and simple.
An Estate Plan is short, sweet, and simple. It may seem like a lot but with a qualified professional at your side, the process becomes very easy. Creating an Estate Plan will certainly take some time and effort and it has its costs. On the other hand, once an Estate Plan is created, the entire end of life process is simplified for yourself and your family. Without an Estate Plan, the end of life process is anything but short, sweet, and simple.
In summary, the reason why we should create an Estate Plan is simple. It is necessary. There is no good reason to avoid the process. Furthermore, the earlier you create your Estate Plan, the more you are prepared as you move forward in life.
Written By Naveed Husain (nhusain@dupageattorneys.com)
Majority of information available for divorcees are geared towards mothers. Divorce can be equally, if not more, devastating and both financially and emotionally draining for fathers who lose their children in child custody battles. Here are a few tips to keep in mind as you go through the divorce process.
1) Get a good lawyer –If you and your ex-spouse mutually agree on the divorce and there no major issues exist, it can be a short, easy process. However, if there are disagreements with things such as assets, debts, and child custody, it is pertinent you hire an attorney because the divorce may be lengthy and complicated. An attorney can help you understanding your rights and what you’re giving up.
2) Know what you’re signing: Many couples going through divorce want the process to finish as quickly as possible. They tend to blindly sign the divorce papers, only to realize later that they gave up more than they were willing to. One example of that is not taking the time to learn the types of custodies and what each of them entail. As you go through the divorce process, ask you attorney about your rights and what you are giving up. The most common issue we see at our firm is fathers wanting more visitation with their children even though the forms they signed say otherwise.
3) Keep a good relationship with your children during the process – Children tend to be confused with what is happening around them, and they may even choose to favor one parent over the other. Bad mouthing your spouse or arguing with her in front of them will hurt their feelings and may turn them against you down the road. Regularly ensure them that their parents love them and talk them through their feelings.
4) Be courteous to your ex-wife – Being respectful and nice can make your divorce process go more smoothly than you expected. Civility goes a long way.
How you behave with your ex-spouse will affect your relationship with your children, especially if they are living with their mother.
5) Show the court that you care – This tip is mostly for fathers who would like to gain custody of their children later on. If you would like the court to change custody, it is important that you demonstrate you continuously did what was best for your child. For example, did you always pay child support on time? Did you maintain your visitation schedule? Did you seek any professional help on how to become a better parent? Do you have friends and family who can testify about your parenting skills? These will ultimately help the court treat your case more favorably.
Contact us today for a free consultation. Divorce with children can be a traumatic, emotional experience. Do not let the process burden you with more than you are already going through.
Written By: Shahzeen Karim (skarim@dupageattorneys.com)