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Illinois Last Will and Testament

Traditionally, the Last Will and Testament is the cornerstone of the estate plan. Although the revocable living trust, in many instances, has replaced the Will as the primary means of transferring wealth at death, every estate should include a Will.

Purpose of Illinois Will

It is important to understand what a Will does and does not do. A Will addresses three primary issues after your death:

  • Who gets your “estate” (beneficiaries);
  • Who administers your estate (executor); and
  • Who cares for your minor children (guardian).

Your Will controls only assets titled in your sole name or in tenancy in common (your “probate estate”). Assets held in a trust, in joint tenancy with a surviving joint tenant (usually) and assets subject to a valid beneficiary designation (e.g. life insurance, retirement benefits, pay-on-death accounts) do not pass under the terms of your Will.

Unlike living trusts, which can be used to manage assets during your lifetime, a Will has no legal effect during your lifetime. Unlike living trusts, Wills generally require a court procedure after your death, called probate, in order to carry out the terms of the Will (unless a “small estate affidavit” can be used).

Types of Illinois Wills

There are three basic types of Wills that may be created:

  • Outright Will. This type of Will is used when neither a living trust nor a testamentary trust is desired. It is “outright” because the Will provides for gifts to be made outright to the beneficiaries at death, rather than held and disposed of within a trust over a period of time.
  • Will with Testamentary Trust. This type of Will may be used when one wants to leave gifts in trust, but does not desire to set up a revocable living trust. We rarely advise that clients use this type of trust because it is nearly as complex and costly to draft as a living trust, without the benefit of avoiding probate, both during incapacity and at death.
  • Pour-Over Will. This type of a Will is used in conjunction with a revocable living trust. It serves as a “safety net” for any assets not titled in your trust after your death and pours them into the trust to be disposed of within the trust. However, pour-over Wills, like all Wills, do not avoid probate if the aggregate value of assets passing by Will exceeds $100,000, or if there is any real estate.

Why Create a Will

It is advisable for nearly everybody who owns any property, or who has children, to have a Will. If you do not have a Will, Illinois has made one for you (in the “statute of descent and distribution”).  In many cases, the default may not provide what you might have desired.  For example, if you are married and have children, your estate would pass one-half to your surviving spouse and one-half to your children.

Additionally, anyone with a minor or adult dependent child should have a Will to declare your wishes for who will become guardian of your children. Without a Will, your family will be left not knowing your desires and, all too often, fighting over them in court. Not only can you designate who you want to serve, you may also wish to emphasize who you don’t want to serve or place conditions on the appointment of a guardian or co-guardian, both for personal custody and for asset management.

Without a Will, the identity of the person responsible for executing your estate will be uncertain.  If your family cannot agree on an administrator, it will be up to the probate court to decide.  Moreover, the court will require the administrator to post a surety bond, which could otherwise have been waived in a Will.

Limitations of Wills

While it is vitally important to create a Will, they do have limitations. There are certain things that a Will can do and others things that a Will cannot do. The following is a brief summary of what a Will can and cannot do.

A properly drafted and executed Will can:
  • Specify how to dispose of property in your name through the probate process;
  • Specify from what sources payment of debts and expenses are to be made;
  • Designate your preference for who should be appointed as guardian of any minor children;
  • Designate who you want to run your probate estate;
  • Request waiver of representative’s surety bond; and
  • Indicate preference for independent or supervised probate estate administration.
A Will cannot:
  • Dispose of property titled in joint tenancy or property subject to a valid beneficiary designation;
  • Help your estate avoid probate court;
  • Provide for management of your assets during disability or incapacity;
  • Keep the affairs of your estate private; or
  • Effectively disinherit a surviving spouse.

Even for “simple” outright wills, it is nearly always advisable to have a qualified attorney draft and oversee the execution of your Will. Unlike some other documents, courts strictly construe the language and execution of Wills, therefore, if proper terminology and procedure is not used in drafting and executing the Will, your wishes may not be carried out as you intend.

Illinois Wills Require Probate

The terms of a Will are not self-executing after death.  Unless your estate is small and qualifies for a small estate affidavit upon death, in order for your named executor to carry out the terms set forth in your Will, he/she will generally be required to retain an attorney to petition the court to have the Will admitted to probate and be formally appointed as executor.  This often leads to additional delay, cost, complexity and risk for your estate.  You can read more about the probate process on our Illinois Probate Primer page.

To avoid the probate requirement, among other reasons, many individuals choose to manage and transfer their estate through a funded Revocable Living Trust.

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