When planning for your future and your family’s future, it is important to think about what will happen after you die. Who will receive your money and property, and how will your assets be divided? If you have minor children, who will care for them? You can use a will to let others know your answers to these questions so that your wishes are honored.
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Do I Really Need a Will in Illinois?
A will is not legally required in Illinois, but you should consider having one if you want to determine who receives your assets after your death. If you have children, you should consider using a will to name a guardian for your children.
Dying without a valid will is called being intestate. If you die intestate, an Illinois court will follow Illinois’s laws for intestate succession. The intestate succession laws include a list of relatives ranked by priority to inherit from you. Your spouse and children are the first options to inherit from you. If you are not married and have no children, a court will continue down the list from close relatives to distant relatives until it finds someone who can inherit from you.
A judge will not explore whether your relatives had a good relationship with you or if you would have wanted to give assets to them. An estranged family member could end up benefitting from your years of work and saving. In rare instances, a person’s estate will pass to the state of Illinois if they do not have at least one relative to inherit from them.
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How To Get a Will in Illinois
Because a will is a legal document, it must comply with Illinois law to be valid. To ensure your will is valid, hire an Illinois estate planning attorney or purchase a will form from a reputable source. If you use a form to make your will, follow these steps: See full process
List your assets and decide how you want to give them away
There are several ways to give assets away before and after you die. Some common methods are:
- An outright gift of property or money during your lifetime
- Placing assets in a trust for the benefit of another person
- Naming beneficiaries of life insurance policies and retirement accounts
- Naming a payable on death beneficiary of a financial account
- Giving property and money through a will
Make a list of your assets, including life insurance policies and retirement accounts, and determine which items you will give through your will. Assets passed through your will must go through probate unless your estate is small enough to be administered with a small estate affidavit.
Choose your beneficiaries
A will lets you choose who will get your money and property after you die. You can give a specific item to one person or money to another. Your beneficiaries can include organizations like schools or charities. If you give assets to a school or charity, ask their planned giving or fundraising personnel what types of gifts they can accept.
A court will follow your will’s instructions as long as they are not illegal or impossible to carry out. If you want to disinherit a spouse or child, you should consult with an estate planning attorney because Illinois has provisions in its laws to provide for spouses and children who are left out of wills.
Choose an executor
Choosing an executor is an important decision. You should choose a primary executor and one or more alternates in case your first choice is unable to serve.
Your executor will oversee your probate assets after you die, so they must be responsible and trustworthy. Your executor should be willing to serve and understand what their responsibilities will be. Some of the executor’s responsibilities are:
- Presenting your will to the court for probate
- Identifying your probate assets
- Notifying your beneficiaries and creditors about the probate process
- Paying bills and taxes for your estate
- Distributing your assets to devisees in accordance with your will
The above tasks can be difficult, but your executor can use funds from the estate to hire professionals, such as attorneys and accountants, to help them manage the estate and probate process.
Choose people to care for your minor children and their property
You can name your preference for a guardian for your minor children in your will. A court must approve your choice, but they will honor a parent’s wishes unless the proposed guardian is unfit or not in a child’s best interests. You should also name alternate guardians who can care for your children if your first choice cannot serve.
Your child’s guardian will make choices about your child’s education, health, and welfare and will have legal custody of your child. You should speak with your prospective guardian to ensure they want the responsibility of raising your child. Questions to ask when choosing a guardian are:
- Do they have a good relationship with your children?
- Are they physically capable to raise your children?
- Do they have the time and resources to meet your children’s needs?
- Do they live far away, and will your children be forced to move?
- Do they share your values?
When planning for your children’s future, you should try to leave assets to support them and to take pressure off their guardian. A revocable living trust is a good way to leave children assets because a trust gives you more control than a will over how and when your children will receive your assets. In your trust, you can name a trustee to manage your child’s assets. Like an executor, your trustee should be responsible with money and trustworthy.
Execute your will form
You must execute your will in compliance with Illinois law. Illinois requires every will to be witnessed by two adult witnesses. You also must sign your will or have another person in your presence sign for you. Your witnesses should not be heirs or beneficiaries of your will.
It is helpful to include an attestation clause for your witnesses to sign under penalty of perjury. Unless the court has proof of fraud, forgery, or other improper conduct, it will admit a will with an attestation clause without requiring witnesses to testify. The requirements for an attestation clause are included in the Illinois Statutes.
Store your will in a safe place
Your will is useless if you lose it because it is difficult to convince a court to accept a copy of a will in Illinois. Keep your original will in a safe place. Some law firms store originals for clients, but you need to know what the firm’s plan is if it goes out of business. You also can keep it in a safe place in your home or a safe deposit box. However, safe deposit boxes can be difficult to access, so you will need to talk to your bank about its policies for opening a safe deposit box.
You should let your executor and family members or friends you trust know where your will is stored. Do not reveal your will’s location to anyone you think might destroy or hide the will.
Review your will from time to time
Any time you have a major life change, such as a marriage or birth of a child, you should review your will because you likely will need to revise it or create a new one. You also should review your will every few years to make sure it still meets your needs. You can ask an Illinois estate planning attorney to review your will for you if your family or financial situations have changed.
You May Want To Speak With a Lawyer if You:
- Have a past divorce, blended family, or other complex family situation
- Have a high-value estate
- Own a business
- Want to create a special needs trust
- Want legal review of your completed will
Ready to get started on your Illinois will? It’s free to start.Create My Will
Illinois Will FAQ/People Often Ask
A last will and testament is the same thing as a will. It is an estate planning document that has three main functions:
- Directs how and to whom your assets should be distributed
- Names a guardian to care for your children
- Names an executor to manage your property and distribute your assets after you die
A testator is a person who makes a will. A testator must be 18 years old and of sound mind to make a valid will. Beneficiaries are people who receive the testator’s assets through the will. Before your beneficiaries receive your assets, your will likely will go through the court process called probate.
However, if you do not own real estate and the total value of your personal property is less than $100,000, your estate may be able to avoid probate if your executor uses a small estate affidavit. The small estate affidavit is available in the Illinois Compiled Statutes. It allows your executor to administer your estate without court supervision.
There is no legal requirement for an attorney to create a will, but an attorney can be helpful. A lawyer can ensure your will complies with Illinois law and disposes of your assets as you wish.
If you want a simple will and do not have a large net worth, you can create a will using an easy-to-complete form.
FindLaw is not a law firm, and the forms are not a substitute for the advice or services of an attorney. If you have children with special needs, want to disinherit family members, own significant assets, or have legal questions, you should ask an Illinois estate planning attorney for legal advice. An attorney can draft a will for you or review your will form before you execute it.
There is no set fee for wills in Illinois. If you ask ten different estate planning attorneys, you likely will get ten different quotes and a wide range of prices. Some attorneys charge a flat fee for a will, but others may charge an hourly rate. Prices also can depend on the complexity of your will, the going rate in your city, and an attorney’s experience level.
If you hire an attorney to draft a will, you will pay at least a few hundred dollars. Many attorneys also offer estate plans that include a will, a trust, and other documents. These plans can cost a few thousand dollars, but they can save you money in the long run.
Some states offer a sample will in their statutes, but Illinois does not. You can find free forms available from other sources, but there is no guarantee they comply with Illinois law. If you use a form, you will be safer purchasing a form from a source that tailors its forms to Illinois law, such as the Illinois will form we offer.
If your circumstances change, you can revise or revoke your will. You can change your will by drafting an amendment to a will called a codicil. You must execute your codicil in the same manner as your will. Only use a codicil if you are making a couple of minor changes to your will. If you have substantial revisions, draft a new will.
Under Illinois law, you can revoke a will by any of the following methods:
- Burning, canceling, tearing, or obliterating it
- Executing a new will that states it revokes prior wills
- Executing a new will that is inconsistent with your old will (but only to the extent it is inconsistent)
- Executing a written revocation that is executed in the same manner as a will.
To avoid confusion, you should either execute a written revocation or a new will that clearly states it revokes all prior wills and codicils.
A handwritten will can be valid if it is properly witnessed by two witnesses, but it makes little sense to handwrite a will when you can purchase a form, hire an attorney, or type it yourself.
In many states, holographic wills are valid, but they are not valid in Illinois. A holographic will is a handwritten will that is signed by the testator but not witnessed.
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