Often, in the confusion and grief surrounding the death of a loved one, the will, if one exists, can be a source of concern and confusion. Where is it? What should we do with it? These are important but often overlooked questions. Illinois law provides some of the answers.
In a nutshell, a will is a document that determines the distribution of a person’s property, or more specifically, that person’s probate estate upon a person’s death. A probate estate is made up of all assets owned individually by the deceased person at the time of death. For example, a house in joint tenancy with another or a life insurance policy with a named beneficiary is generally not part of the probate estate. The will names the person or persons who will be responsible for the administration of the will. That person is known as the executor. The will also determines the “rules” for the probate of the estate, such as what the executor can do and whether or not the executor will have to post a bond, purchased from an insurance company, to guarantee performance of the executor’s duties.
WHAT DO YOU DO WITH A WILL
Contrary to Hollywood’s portrayal of the handling of a will, in Illinois, there are rarely, if ever, will “readings” where the family comes together in the lawyer’s office to be told what they are to receive from the deceased person. Instead, in Illinois, a will is a document of public record. Whether or not a will is probated, the law requires that the will be filed “immediately upon the death of the testator” and the law imposes a penalty if the will is not filed within 30 days of the date of death. The text of the law requiring that a will be filed is as follows:
755 ILCS 5/6-1 Duty to File
(a) Immediately upon the death of the testator, any person who has the testator’s will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue an attachment and compel the production of the will.
(b) If any person wilfully alters or destroys a will without the direction of the testator or wilfully secretes it for the period of 30 days after the death of the testator is known to him, the person so offending, on conviction thereof, shall be sentenced as in cases of theft of property classified as a Class 3 felony by the law in effect at the date of the offense.
The will is to be filed with the Probate Court Clerk in the County where the probete is to properly take place. Once filed, a will that is filed may be viewed or a copy obtained by any member of the public.
As an aside, the law also requires that all codecils to a will be filed with the Probate Court Clerk.
WHERE IS THE WILL?
Often, the family cannot find the will of a deceased person. They know that there was a will and may have even seen it, but it cannot be found. In all but the most extreme cases, the original of a will is required if the terms of the will are to be followed. Thus, it is extremely important that the original copy of a will be located, especially if the will provisions deviate from the distribution under the Illinois Intestate Succession Statute (this is the statute that determines what happens when a person dies without a will). If the will cannot be found and it was last known to be in the possession of the person making the will, the law in Illinois presumes that the will was destroyed!
Often, a person will keep a will in a safe deposit box at a bank. However, if the family members are not named as persons authorized to access the box, the bank will not allow the box to be opened by the family. However, Illinois law provides that the bank itself may open the box in the presence of a family member to specifically search for a will. If a will is found, the bank will file the will with the Probate Court Clerk. The text of the Safety Deposit Box Opening Act is as follows.
Upon being furnished with satisfactory proof of death of a sole lessee or the last surviving co-lessee of a safe deposit box, the lessor shall open the box and examine the contents in the presence of a person who presents himself and furnishes an affidavit which states that
(a) he is interested in the filing of the lessee’s will or in the arrangements for his burial, (b) he believes the box may contain the will or burial documents of the lessee and (c) he is an interested person within the meaning of this Act. The lessor shall not open the box in accordance with this Act if the lessor has received a copy of letters of office of the representative of the deceased lessee’s estate or other applicable court order. The lessor need not open the box if (a) the box has previously been opened in accordance with this Act, (b) the lessor has received notice of a written or oral objection from any person or has reason to believe that there would be an objection, or (c) the lessee’s key or combination is not available.
For purposes of this Act, the term “interested person” means any person who immediately prior to the death of the lessee had the right of access to the box as a deputy, any person named as executor in a copy furnished by him of a purported will of the lessee, or the spouse, an adult descendant, parent, brother or sister of the lessee. If the affidavit states that none of the persons described above is available to be present at the opening of the box, the term “interested person” also means any other person who the lessor in its sole discretion determines may have a legitimate interest in the filing of the lessee’s will or in the arrangements for his burial.
The lessor shall remove any document which appears to be a will or codicil and deliver it to the clerk of the circuit court for the county in which the lessee resided immediately prior to his or her death, if known to the lessor, otherwise to the clerk of the circuit court for the county in which the safe deposit box is located. Delivery of a will or codicil called for herein may be made by registered mail sent to the clerk of the said court. The lessor may remove any burial documents and deliver them to the interested person. No other contents may be removed pursuant to this Act. The lessor is not required to look into the truth of any statement in the affidavit required to be furnished under section one of this Act. The lessor’s determination of the fact situations to be met under this act shall be conclusive and final. The lessor shall be fully protected in relying conclusively on it.
Thus, the process of requesting that a bank open a safe deposit box requires only the presentation of an affidavit to the bank.
Once a will is filed, the family can determine where or not a formal probate estate needs to be opened.