Creating a last will and testament is crucial in planning the distribution of your estate—the real estate, personal property, and cash you own— after your death. Illinois wills give the testator (the person writing the will) the opportunity to ensure that a spouse, children, other loved ones, and even pets are taken care of after his death. You may also choose to leave property or make other gifts to charitable organizations through your Illinois will.
Not to be confused with a will, a living will provides instructions should you become incapacitated and incapable of making decisions regarding your health and medical care; accordingly a living will, if necessary, takes effect during one’s lifetime while a last will takes effect only after one’s death. Illinois explicitly allows living wills through its Living Will Act.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of an estate's assets. The outcome under intestacy rules may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
There are many benefits to having an Illinois last will and testament, but one of the most important is that it allows the testator to choose the executor of the estate, that is, the person who will be responsible for carrying out the wishes contained in the will.
A will can offer a testator great peace of mind in knowing that his desires as to how assets should be divided between loved ones upon his death will be followed. An Illinois last will and testament also offers the opportunity to make a charitable gift and create a trust for a spouse and children.
Another benefit of a Illinois will is that it can allow you to nominate the person to act as legal guardian of your children and also to outline the guardian's duties.
In addition to testamentary trusts (i.e., trusts created through a last will and testament) that provide a benefit for people, Illinois law specifically allows the creation of a “pet trust” in order to provide for the care of an animal after its owner’s death. The trust terminates when no living animal is covered by the trust. An Illinois will gives you the opportunity to ensure the well-being of your pets after your death in this manner.
A valid last will and testament can also help speed up the probate process for the estate. Probate is the court-supervised process of distributing the estate of a deceased person. In Illinois, the person in possession of the deceased’s will must timely file it with the clerk in the appropriate county, after which the court will issue letters of office. The executor of the will may then distribute the deceased’s property as provided for in the will.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. Generally speaking, in Illinois, if you have a surviving spouse as well as a descendant, each receive half of your estate; if you have only a surviving spouse or a descendant, he or she would receive the entire estate. If you have neither a surviving spouse nor a descendant, other relatives, including parents, siblings, and grandparents, will inherit depending on the closeness of the relation.
As you can see, if you would like to have control over the distribution of your assets, it is vital that you have a will.
Exceptions to Ability to Distribute Property
Not all property you own can be distributed according to a will. For example, any property owned as a joint tenant with right of survivorship cannot be devised by will in Illinois.
Another important exception involves the spouse’s award. In Illinois, the surviving spouse is allowed a sum of money the court deems reasonable for his or her proper support for a period of nine months following the death of the decedent. The spouse’s award kicks in unless the decedent has provided otherwise in the will explicitly in lieu of the spouse’s award and the surviving spouse has not renounced the will.
The surviving spouse has a right to renounce the will and is entitled to 1/3 of the entire estate if the testator leaves a descendant or 1/2 of the entire estate if the testator leaves no descendant.
Form a Last Will in Illinois
The basic requirements for an Illinois last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of “sound mind and memory.”
- Signature: The will must be signed by the testator or by someone else in the testator’s name in the testator’s presence, by the testator’s direction.
- Witnesses: An Illinois will must be signed by at least two credible witnesses, who should not also be beneficiaries in the will.
- Writing: An Illinois will must be in writing.
- Beneficiaries: A testator can leave property to any beneficiary provided he or she is not a witness to the will.
Changing an Illinois Last Will and Testament
Any changes to an Illinois will are valid only if they are enforced according to the same procedures as a will. Moreover, changes must be made by the testator or by someone else in the testator’s presence and by his or her direction or consent.
Revoking an Illinois Last Will and Testament
The revocation of a Illinois will can be accomplished in the following ways:
(1) by burning, cancelling, tearing or obliterating it by the testator himself or by some person in his presence and by his direction and consent, (2) by the execution of a later will declaring the revocation, (3) by a later will to the extent that it is inconsistent with the prior will or (4) by the execution of an instrument declaring the revocation and signed and attested in the manner prescribed by this Article for the signing and attestation of a will.
Ready to take the next step to protect your family by creating a will? LegalZoom can help you make a last will online in three easy steps.