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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).
SERVICES AND FEES
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.
WILL REVIEW SERVICE
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.
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