A last will and testament is a legal document that tells your family and friends what your wishes are for your assets and your family after you die. Think about informing someone who will take care of your kids, your house, and your car. That’s exactly what a last will does.
To make a will valid in Illinois, you must be at least 18 years old, mentally sound, and the will must be in writing, signed by you, and witnessed by two trustworthy adults. (Just so you know, that’s one reason why a “free last will and testament” template from the internet can be dangerous: it might not be legitimate if it doesn’t have a formal signature or witness.)
A lot of individuals put off creating a will, but think about this: if you don’t have one (called dying intestate), Illinois law decides for you. If you don’t make a will, the courts will divide your property and even choose a guardian for your kids. That’s crazy that you could just say, “Hey, Aunt Mary, take care of my son.” And just about 24% of Americans have a will, so you’re already ahead by making yours. A will is like a voice in the future that keeps control in your hands instead of someone else’s. Let’s talk about what goes into one, how it works, and how to get yours in order in Illinois.
What is a last will?
It’s a legal document that tells people what you want to happen to your money and dependents after you die. In short, it says who you want to inherit what (your house, bank accounts, jewelry, etc.) and can also designate an executor (the person who will take care of everything) and guardians for your kids who are under 18. A last will and testament is a legal document that tells people what to do with your assets after you die.
Having a will gives you some control over what happens after your death. If you don’t write one, Illinois’s intestacy regulations say that your inheritance will be “settled by the courts,” which probably means that your spouse and children would get half of everything. When you make a will, you basically create your own rules for where your home, savings, heirlooms, and even custody of your kids should go.
Last Will and Testament in Illinois Law
Now, let’s get into the details for Illinois. The Probate Act is the statute of Illinois that sets the rules. The main conditions are: (a) you must be at least 18 years old and mentally stable; and (b) the will must be in writing, signed by you (the testator) or someone you tell to do so, and witnessed by two trustworthy people who are present. So, get two adults who aren’t getting anything from the will to watch you sign it at the end, and then have them sign as witnesses. That’s all the formality. (You can also include a notarized affidavit to make things easier in probate, but Illinois law doesn’t require it.)
These rules mean your will is legal and binding if done correctly. They must be met by any “free” or “do-it-yourself” forms. It’s a big deal if you fail to sign something or skip a witness. You can draft a will without a lawyer, but it’s always a good idea to check with an estate attorney to be sure your Illinois will is solid.
How Does a Will Work?
So, how does a will work after you die? Think of it as your posthumous instruction manual. Here’s the basic flow:
- Executor Takes Charge: The executor, who is also known as a personal representative, submits the will to the probate court. The law says that the individual is in charge of settling the estate.
- Probate Process: The court officially validates the will and oversees the process. The judge settles any arguments or misunderstandings.
- Gather Assets and Pay Debts: The executor collects all of your assets, like as bank accounts, real estate, and personal property, and pays off any obligations and taxes that are still owed.
- Distribute to Beneficiaries: The executor gives out the rest of the money according to your will after the debts are paid off. If you set up trusts in your will, the executor will give money to the trustee to handle according to your wishes.
- Guardianship of Children: If you have minor children and named a guardian, that person steps in. (If you didn’t name one, a court will appoint someone.) The courts will appoint a guardian for minors if there’s no will, which is why this clause is so important.
To put it simply, you make the instructions now, but they don’t go into effect until you die. The executor is watched over by the court (probate) to make sure your desires are carried out. For instance, “a will names an executor… [who is] responsible for administering the estate,” and “a probate court usually supervises the executor to make sure that the wishes in the will are carried out.”
Key Parts of Your Will
What must go into your will? Every will is a bit different, but here are the essentials:
- Specific Bequests (Gifts): These are gifts of certain things to certain people. You could say, “I specifically give my engagement ring to my daughter Sarah,” or “My 1967 Mustang goes to my nephew.” You get to choose who gets what.
- Residuary Bequest (Remainder): This is what is left of your inheritance after all obligations have been paid and other presents have been given. You may say, “All the rest of my estate will go to…” anybody you want. The residuary clause “says who gets the rest of your estate after all debts are paid and all other gifts are made.” So if you list specific gifts, this will cover everything else.
- Executor/Trustee Appointment: You choose someone you trust to take care of everything. The executor will collect assets, pay bills, and divide up property. It’s a massive job, but it has to be done. Another lawyer says that the executor must “protect your loved one’s property and make sure that all debts and taxes have been paid… [and] make sure that whatever is left goes to the right people.” If you’re making a trust in your will (such as for a child), you should also name a trustee to manage it.
- Guardian for Minors: If you have children under 18, you should name a guardian for them in your will. If you die, that person (or people) will take care of your kids. You can also name a “guardian of the estate” to take care of any money your kids get when you die. Experts say that dying without naming a guardian “makes a tragic situation that much worse.” If you don’t say, the courts will choose someone for you. You may be confident that the person you trust is in charge by naming a guardian.
- Debts and Taxes: Your will should say that estate debts, such as credit card bills or burial charges, must be paid off before the assets are given away. This usually happens automatically, but it’s good to say it. Part of settling the estate in Illinois is that the executor has to pay “debts and taxes.” This prevents arguments or confusion over whether an heir should help pay off debts.
- No-Contest Clause (Optional): You can add a clause that says anyone who questions the will could lose their fortune. In Illinois, no-contest clauses are usually valid (courts typically honor language that is plain and unambiguous). It’s not required, but it can help stop fights.
- Signatures and Witnesses: Lastly, your will must end with your signature and the signatures of the people who witnessed it. Illinois law says that you need two adults to observe you sign the will. (They say that you signed it freely and were able to do so.) Usually, the witnesses sign exactly below yours to prove that they witnessed you do it. The will is only legitimate if it is signed in this way.
Putting everything together, the will is basically just a list of “who gets what” and “who does what.” This part talks about “who gets what when your loved one dies…how the assets and property will be passed on and to whom.” That’s the most important part of your will: explicit instructions on how to divide your assets, with the individuals who will do it (executor, guardians, trustee) backing them up.
How to Create a Last Will in Illinois
Ready to write your will? Here are the basic steps in Illinois (and really, most states follow a similar process):
- List your assets and beneficiaries. Make a list of everything you possess, like your bank accounts, stocks, home, car, and personal goods, and then figure out who gets what. For each asset or category, write down the names of the persons who own it (complete names and relationships). Think of treasured things like family heirlooms, jewelry, and collections, and name them as well.
- Choose your executor. Choose someone you can trust, like a spouse, family member, or even a lawyer. Make sure they agree, because they will be in charge of your estate (making payments and dividing up your assets). It might be a lot of work, so make sure they’re up for it. You can also choose a backup executor in case your initial pick couldn’t do the job.
- Name guardians (if needed). Make a list of individuals you want to take care of your minor children. You can choose one person to take care of them and, if you like, another person (called a “guardian of the estate”) to handle any money or property that is left to the kids. Talk to these people ahead of time so they know what you want.
- Draft the will document. You can hire a lawyer, fill out a form online (free or paid), or even write it yourself. No matter what, be clear. Say something simple like, “I, [Your Name], of [County], Illinois, say that this is my last will.” Write down your assets and gifts, identify your executor and guardians, and include a residuary clause that says, “I leave the rest of my estate to…” You should also cancel any previous wills in the document. Make sure that each element is clear.
- Sign with witnesses. Sign the will at the bottom in front of two witnesses once it is written. Illinois law says that there must be two adult witnesses who sign the will. They shouldn’t be beneficiaries to keep things from getting messy. Usually, everyone signs the will at the same time, either with a notary present or just their signatures.
- Store it safely. Put the original in a safe place, like a bank safe deposit box or a fireproof home safe. Tell your executor where it is and make sure they can obtain it when they need it. You could give a copy to your lawyer or save it on your computer (but the signed copy is what matters in probate).
- Review and update. You might need to make a new will or alter your old one if you get married, divorced, have a baby, or die. If so, write a new will that says it replaces the old one, or add a codicil, which is a modification. Look over it every few years to make sure it still fits your life.
Making a will can be surprisingly easy. You’re effectively saying, “Who gets my stuff?” Who takes care of everything? And are my loved ones okay? Many online services or lawyers can help you with simple estates. If you ever feel stuck, call Ben Weaver at 23 Legal. He is a lawyer in the Chicago area who can make sure that your Illinois will is as strong as it can be.
Need Help with Your Will? Contact Ben Weaver Today!
Planning your estate can seem like a lot of work, but it doesn’t have to be. Contact Ben Weaver at 23 Legal LLC if you have any questions or would like to discuss further. Ben is a lawyer in Illinois who assists individuals in the Chicago area with wills and estate planning. He’ll work with you one-on-one to make sure your will covers everything and is legal in Illinois.
To get started, call him at (847) 447-6004 or go to 23 Legal in Schaumburg (1834 Walden Office Square, Suite 460). Don’t leave your last wishes up to chance; make sure they are carried out the way you want.
Frequently Asked Questions
It’s the legal document where you say what you want to happen with your possessions and your dependents after you die. It names your beneficiaries (the people who will acquire your things), an executor, and can even name guardians for your kids. In short, it’s your written voice for what happens after you die.
Your executor files the will with the probate court after you die. The court checks it, and then the executor collects the assets, pays the obligations and taxes, and gives the balance to the recipients just as you told them to. The probate court watches over the procedure to make sure everything is in line with your will. Assets that have named beneficiaries, such as life insurance or retirement funds, go straight to those beneficiaries and don’t go through probate.
At the very least, a will should say who you are (complete name, maybe address), list each beneficiary, and explain what each one gets. You should choose an executor and some backups. If you have young children, pick a guardian. For the balance of your estate, include a residuary clause. And remember to sign it in front of two witnesses, as the law in Illinois says you must. It’s also a good idea to say how debts should be paid off (from the inheritance). In short, you need to list your assets, beneficiaries, executor, guardian, and sign.
If you die without a will (intestate), Illinois’s default rules take over. By law, your estate will be divided. Usually, your spouse and children will share it. For instance, if you’re married and have kids, your spouse may get half and your kids may get the other half. If you don’t have a spouse or kids, your more distant relatives will get your things. The court will also choose guardians for any children under 18. The law makes all of these decisions, not any wishes you had. This is dangerous if you intended things to turn out differently.
You can make your own will without hiring a lawyer, and there are even free forms online. But you should be careful. Any will you use must meet the legal standards in Illinois. A “free last will and testament” template might not include important information like the two-witness rule or certain local clauses. Make sure that what you do yourself is legal in Illinois. To be protected, a lot of people choose a lawyer or a trustworthy internet service.
The executor is the person or individuals you choose to handle your estate. Think of them as the person in charge of your will. They are in charge of filing your will in probate, paying off your bills and taxes, and giving your assets to the people who will benefit from them. You need one so there’s a clear, trusted point person to carry out your wishes. If the court doesn’t name someone, it can choose someone at random, which could cause delays or family fights.
They can help you get started, but be careful when you utilize them. One expert says that you still have to follow all the rules for signing. A free form might not remind you of rules that are only in your state, such as Illinois’s witness requirements or the phrase to cancel previous wills. It won’t harm to fill one out, but you might want to have a lawyer look it over, like Ben Weaver. A modest amount of money spent on expert counsel can save you a lot of trouble later.
Why Choose 23 Legal
23 Legal offers Real Estate and Estate Planning legal services to individuals, families, community associations and small business owners throughout Chicagoland. We know how intimidating “the law” can be. In fact, when most people think of law offices, they think of stuffy leather chairs, huge wooden desks and pompous lawyers who charge outrageous fees. That’s not us! We believe in 1-to-1; the same lawyer should work with you all the way through. Whether you have an estate planning issue, family trust concern, or you have a legal problem in regard to a new home, business, real estate or remodel, you need a lawyer who cares. That’s where Ben comes in! We are great listeners; more than that, we are lawyers who believe that our clients always come first.
