A good starting place in any conversation is to define what we are dealing with -- so what is a Will?
"A will or testament is a legal document that expresses a person's wishes as to how their property is to be distributed after their death and as to which person is to manage the property until its final distribution." Wikipedia
Wills are pretty important, but not everyone believes in them. I've met attorneys who would tell you that having a Will is a terrible idea... everybody's estate planning has to work for them. No two people are alike, and that means no two people have left the same "legal fingerprint" over the course of their lives. For tiny estates, no management plan may be needed at all. And for those who are comfortable with the intestacy laws of their home state, they have the right and freedom to trust the statutes.
A lot of popular wisdom online will tell you that having a Will - or some sort of testamentary or estate management device - in place is essential.
"A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. ... Wills can vary in their effectiveness, depending on the type, though no document will likely resolve every issue that arises after your death."
What does an Illinois Will do for my estate?
A will can help to protect your family and your property. When we estate plan generally, we want to Preserve Wealth, Protect Families, and Build Legacies.
In Illinois, the Probate Act allows you to use your will to:
What Happens if I Die Without a Will?
In Illinois, if you die without executing a valid will, your property will be distributed under Illinois's intestacy law .
This is a law that gives your property to your closest relatives, starting with your spouse, and if you have them, children. If you don't have a spouse or children, then your grandchildren will get your property - a process the law refers to as "taking." Your heirs "take" from your estate when you are gone.
If you do not have grandchildren, and they are still living, then your parents will get your property. This statutory design lays out a list that continues to look for increasingly distant relatives, including any siblings (if you have them), aunts and uncles, any cousins, nieces and nephews, and - in rare cases - great grandparents.
The core idea is to keep your property if at all possible in your bloodline, and adopted persons are by law generally considered of the same bloodline. Rare instances arise where an adoption occurs under principles of "equity," and an improperly executed adoption can sometimes leave imperfect or unclear rights to adopted heirs.
Under the Intestacy Statute in Illinois, should a probate court exhaust this list and discover that you have no living relatives - either by blood or marriage, the state will take your property - known under the phrase, escheat. If that looks like the word, "cheat," to you, don't worry, you are in good company. It's something many clients have pointed out to me before.
A lot of people have a Will drawn up and get the help of competent legal counsel to make sure it is executed properly, precisely because they don't want everything they worked for to go to the State.
However, you may want to consult a lawyer in some situations. You may be estranged from certain people in your life, or have conflict with family that you suspect may be intensified in the future. You may also know that your children or other heirs are not on good terms, and that they may fight over your estate. Not everyone cares about or believes in the idea that previous generations can help shape the future. But those who do often choose testamentary devices to head off trouble.
This guiding hand, from beyond the grave, is more than a mere financial or legal consideration. In many great families, famous for fortunes or empires, the elder generations provided for and sought to encourage peace and prosperity through expression of their final wishes.
Estate planning is about the history you lived, and the future you hope to hand to your heirs.
Numerous scenarios can play out. For example, if your will might be contested or if you want to disinherit a child or your spouse, it is a good idea according to many experts to first seek competent legal counsel.
Are there special requirements for signing a Will in Illinois?
Do I Need to Have My Will Notarized?
No, Illinois does not require you to notarize your will to make it legal.
But other documents that you may execute in estate planning will need to be notarized. Having a good resource for estate law can help you avoid mistakes along the way.
Some relatively simple oversights can end up creating headaches in estate administration.
Should I Use My Will to Name an Executor?
Yes, you probably should. Illinois law permits you to use your will to name an executor who will ensure that the instructions you leave behind in your will will be carried out after your death. If you don't name an executor, the probate court will appoint someone called an Administrator to take on the job of handling your affairs after your death, often called, "winding up" your estate. That Administrator, depending upon the circumstances, may or may not be "supervised" by the Court - which can result in additional expenses assessed against the estate itself.
Can I Revoke or Change My Will?
If you get a divorce or if a court finds that your marriage is not legal, Illinois law automatically revokes any language in your will that leaves property to your spouse or makes your spouse your executor. At law, it is said that divorce severs all inheritance rights. Sometimes, couples that split up maintain friendships and close bonds, and it is not totally unheard of for an ex-spouse to leave something to their partner. But the law will assume that is not the case. 755 Ill. Comp. Stat. § 5/4-7. If for any reason you want to create a different estate plan with respect to an ex-spouse, you might benefit from speaking with a skilled estate lawyer.
If you have other concerns about the potential impact of a divorce on your will, consult an estate planning attorney for help.
Generally, should you find that you need to make changes to your will, it’s often best to totally revoke it and make a new one that captures a current picture of your estate, affairs, and known heirs.
If you have only simple changes in mind, then you could add a codicil. But whatever you do, you will need to formally finalize your amendment of your will with the exact same legal formalities used when you made your original will (see above).
Where are the Illinois’s Laws Wills?
You can find Illinois’s laws on point as to making wills here: Estates 755 Illinois Compiled Statutes 5 Probate Act of 1975 Article IV Wills. Also, throughout our site are links to helpful resources.