A will is a critical legal document to provide for your loved ones after your death. A will also streamlines the probate process. Here are some answers to frequently asked questions about making a will in Illinois.
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What If I Die Without a Will in Illinois?
Dying without a will is called dying “intestate.” And if you don’t have a will, an Illinois probate court follows state law to determine who inherits your estate. So, for example, if you have a spouse and children, your surviving spouse only inherits half of your estate. And if you have a life partner but are unmarried, they do not receive anything.
What Does a Will Do?
An Illinois will contains your wishes on how you want your estate managed and who you want to inherit your assets. When you make a will, you can:
- Name someone to handle estate administration (your personal representative)
- Give personal property and real estate to beneficiaries
- Name guardians to care for your minor children
- Provide care for your pets
- Give money to charitable organizations
Even though a will is referred to as a last will and testament, you can update it anytime during your life, especially if your circumstances change.
What Doesn’t a Will Do?
There are specific accounts and policies that transfer outside your will, such as a transfer-on-death bank account or a named beneficiary on life insurance. When you open a bank account or get an insurance policy, you should name a beneficiary to receive those proceeds after your death.
Examples of these types of accounts and policies are:
- Investment and bank accounts
- Retirement accounts, IRAs, and pensions
- Life insurance policies and annuities
Check your current beneficiary designations and make sure to name a backup if your primary beneficiary died before you. Accounts and policies that do not have a beneficiary will become part of your probate estate.
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Who Can Make a Will in Illinois?
To make a will, according to Illinois law, the person making the will (called the testator) must meet the following requirements:
- Age: You must be at least 18 years old to make a valid will.
- Sound Mind: Illinois requires you to be of sound mind and memory. The test for a sound mind and memory means the will maker or “testator” knows what property they have, who their family members and loved ones are, and that they are making their will and understand the implications of making their will.
If you have concerns about whether or not you can make a will, you may want to consult an estate planning attorney for legal advice and assistance.
Does Illinois Have a Statutory Will?
No, Illinois does not provide a statutory will or a certain format of a will. Illinois residents can make their own will using an online legal services company such as Trust & Will or hire an estate planning attorney to make one for you. As long as the will conforms to state law, it is valid in Illinois.
What Types of Wills Does Illinois Accept?
Although there are different methods of making a will, you should know whether or not Illinois accepts the will.
- Handwritten Will (holographic will): Holographic wills are handwritten by the testator but not witnessed. However, if a will is handwritten and complies with all state laws for execution (finalizing it), Illinois allows it.
- Oral Will: All wills must be in writing. Oral, or spoken wills are not valid in Illinois.
- Electronic Will: Illinois is one of a handful of states that recognizes electronic wills. What that means in Illinois is that you can sign and witness a will using electronic signatures. The testator and witnesses do not need to be in the same location when signing, but the witnesses will know the testator is signing their will using audio-visual communication.
However, the most common type of will is not handwritten, but typed and witnessed according to Illinois’s requirements.
Can I Make My Own Will in Illinois?
Yes. Illinois residents do not need an attorney to create a will. As long as you have testamentary capacity, know what property you have, and who you want to have that property, then you may make a will in Illinois. The benefit of creating a will with Trust & Will is that you can make a new will whenever you want. For example, if you have another child or want to change a beneficiary, guardian, or personal representative. But, if you have unique circumstances, such as a high net worth or a dependent with special needs, you may want to seek legal advice.
How Do I Make My Will Valid in Illinois?
Illinois has laws for how to make a will valid. You must follow specific requirements for signing and witnessing your will.
- Signature: The person making the will must sign their will at the end of the document or direct someone to sign for them in their presence.
- Witnesses: You need two or more “credible” (meaning competent) witnesses to sign your will in your presence. An interested witness is a witness who may benefit under the will. In Illinois, a witness does not have to be a disinterested witness. If you do use an interested witness, then you need two additional disinterested witnesses, or the interested witness will only take (in the will) what they would have received under intestacy laws. Therefore, it is a good idea only to use disinterested witnesses.
- Notary: You do not need a notary to acknowledge your signature on your will. However, you do need a notary if using a self-proving affidavit.
- Self-Proving Affidavit: The state of Illinois allows you to use a self-proving affidavit. This document requires a notary. In a self-proving affidavit, each witness states they saw the testator (or someone the testator directed to) sign the will, the witnesses signed in the testator’s presence, and that they believe the testator to be of sound mind and memory at the time of signing. The advantage of the self-proving affidavit is that your witnesses do not have to appear in person to testify they saw you sign your will.
A probate court may not honor your will if you do not follow the state requirements.
Can I Disinherit My Spouse in Illinois?
No. Illinois protects a surviving spouse by providing an elective share. An elective share is a portion of your estate that your spouse may claim if left of out the will. So, if you leave too little (or nothing at all), your spouse may exercise their claim, called a renunciation. If you have a child, your spouse may receive one-third of your estate. If you do not have children, they may receive one-half of your estate.
Can I Disinherit My Children in Illinois?
Yes. Subject to limited circumstances, your children do not have a right to inherit from you. However, if you want to disinherit a child, it is best to specifically state it in your will. Otherwise, a court may think it is a mistake. Additionally, the court may give your minor or dependent children a nominal award for their support.
What Estate Planning Documents Should I Have in Illinois?
A will is a great first step to a comprehensive estate plan. However, a will only benefits your family after you die. The following are other estate planning documents that help you and your family while you are still alive:
- Power of Attorney. A power of attorney lets you name someone to manage your financial life when you cannot, for example, if you are incapacitated or even out of town. They can pay bills, provide for your family, and handle tax matters. You decide what powers to grant your agent.
- Health Care Directive. A health care directive, also called a living will or advance health care directive, allows you to give instructions for your end-of-life care and treatment, including life-prolonging measures. You can also name a health care agent in your health care directive. Your health care agent is someone you trust to access your medical information and make health care decisions when you can’t speak for yourself.
These documents help you and your family, especially if you are suddenly incapacitated and can’t manage your affairs.