Last Wills in Illinois

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.

Testator Capacity Requirements
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 a 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 (Non-Probate Assets)
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 Last 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
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. 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 $260 per hour, a portion of 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 give us a call to obtain an estate planning questionnaire.  Once you complete and return the questionnaire, we can set up an appointment to meet and discuss your planning goals and opportunities. To get this process started, please feel free to contact Richard Magnone. We are generally willing to have a short (5 to 15 minutes) initial discussion over the telephone to determine if we can assist in your situation and to determine if we might be an appropriate match to work with you.  Face to face Initial consultations are by appointment only and a consultation fee is generally charged.  To get this process started, please feel free to contact Richard Magnone via email or by phone at 773-399-1122.