A WILL PRIMER

In Illinois, wills are governed by Article IV of the Illinois Probate Act of 1975 (755 ILCS 5/4-1). This law sets forth various rules for the capacity of a testator (the person making the will), the particularities of will execution (having the will signed and witnessed), and other catch all provisions. Generally, the well drawn will itself states most relevant terms.

Capacity requirements of a testator

Illinois law sets out three requirements for anyone to write a valid will. The person making the will is known as the "testator".  The law requires that to have sufficient capacity to make a will, the testator:

• is age 18 or older
• is of sound mind and memory
• has the power to give away real and personal property owned at time of the testator's death

Requirements for making a valid will

The Illinois code sets out a number of requirements for the form and execution of a valid will. These require that a will is:

• in writing
• signed either (1) by the testator or (2) by some other person at the testators direction
• attested to in the presence of at least two credible witnesses

Witnesses may be any adult person, but may not be a beneficiary or creditor of the testator unless there are a sufficient number of non-creditor and non-beneficiary witnesses.

What the will does

A will directs the disposition of the testator's property at the time of the testator's death. The will can make directions as to both real and personal property in the testator's "probate estate". The document is extremely flexible and may be used to direct all of the testator's property or just specific articles of the testator's property. The will is flexible enough to place certain restrictions on property and in the case of complex wills, may even contain trust provisions.

In the event that the testator does not make provisions for certain assets, that property will pass via the law of intestate succession. This law is a distribution scheme determined by the Illinois legislature and , more often than not, differs significantly from the testator's own  desires. In order to avoid a distribution in accord with the law of intestate succession, most wills contain a "remainder" or "residue" provision which is a catch all designation for anything not specifically distributed via the other provisions of the will.

Property not transferred by will

A will can be used to transfer the testator's "probate estate".  Commonly, that is all assets titled in the individual name of the testator that do not transfer at the time of the testator's death to some other person "by operation of law".  A will has no control over these "non-probate" assets and will not effectively transfer those assets. For example, a will has no authority to provide for the distribution of any interests which already have a named beneficiary such as life insurance proceeds or pension plan distributions. A testator may, however, direct that these sort of items be paid to the estate of the testator and thus, these items would make up part of the residue of the estate.  Similarly, a will does not govern the transfer of jointly owned property such as real estate held in joint tenancy or as tenants by the entirety. In addition, many bank accounts may be held jointly and would not pass via will. Finally, property owned in trust, such as a living grantor trust or an Illinois land trust will pass outside the power of a will.

Be careful not to confuse the "probate estate" with the "estate taxable estate". Although the distribution of many items may be outside the power of the will, those items may still be subject to estate or inheritance taxation.

Other benefits of a will

In addition to the disposition of property, wills routinely allow a testator to exercise other significant powers. A testator may personally choose the guardian of his or her children upon his or her death or name the persons designated to manage any trusts set up by the will. A testator will be able to choose the person responsible for the administration of his or her estate, commonly known as the "executor". The will may also "waive" the requirement of a surety bond, normally required by the Probate Act, and which can be costly to the estate.  Many testators also take advantage of the will to specify burial instructions (although these directions may not be followed, as the will is usually only found well after the testator's funeral).

DRAFTING SERVICE

We provide full will drafting services and also preside over the execution of the will to ensure that its proper execution. We prepare everything from "simple wills" to more complex wills that plan for the care of minor children, disabled adults, and estate and other tax minimization.  All will drafting services will also include the preparation of a health care power of attorney, power of attorney for property, and HIPPA disclosure.  Prices for estate plans vary.  Simple wills generally cost approximately $350, wills with contingent trusts for minor children generally cost approximately $700.  The price of more complex wills varies and depends upon the client's needs and desires.  Depending upon the situation, it is usually possible to agree on a fixed fee for our estate planning services before we undertake the engagement to assist with your documents.

We will review and explain your existing will or other estate plan for a fee of $225 per hour which will be credited toward a new estate plan should you deem one necessary.

HOW TO GET STARTED

The first step to the will drafting process is to think about the nature and value of your estate. Determine what specific property, if any, you wish to give to specific individuals and decide who should take or share in the remainder. Also think about who you would like to serve as executor of the will. If you have children, think about who you would like to act as guardian should you pass away. Then, please give me a call for a free consultation. Our procedure is to mail you an estate planning questionnaire.  Once you have completed that form and returned it to us, we will set up an appointment to discuss your estate plan.  At that time, we will suggest possible courses of action and our pricing.  If you want to move forward, we will collect a retainer and sign an engagement letter to begin work on your plan.  To get this process started, please feel free to contact Richard Magnone at 773-399-1122.

Return to top

DISCLAIMER This website is intended to supply general information to the public. Although the information is generally accurate, it cannot be guaranteed. The nature of Legislation is that laws change quickly, and visitors should always insure that legal information is accurate before relying on it. The above information applies the law of the State of Illinois. The law in your jurisdiction may be different. This information is necessarily brief and may or may not apply to your situation. In all cases, PLEASE, consult a lawyer before acting.

This website is intended to be advertising, and not solicitation, or legal advice. Thus, the reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein, and should always seek the advice of competent counsel in the reader's state.

Return to top

Return to Main Page