Illinois Wills

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How to make a Will in Illinois

Need information on making an Illinois Last Will and Testament? Does the Will need to be in writing? How many witnesses do I need? Illinois Wills are governed by the Illinois Probate Act of 1975. The section numbers on this page refer to this statute.

The Testator

An Illinois Will may be made by any person who has reached the age of eighteen years and is of sound mind (section 4-1). The person making a Will is called the ‘testator’.

Signing Requirements

Every Illinois Willmust be:

  • In writing;

 

  • Signed by the testator;

 

 

  • Attested in the presence of the testator by 2 or more credible witnesses. Sec. 4-3

 

Can my spouse be a witness?

No. All witnesses to your Illinois Last Will must be independent and uninterested. This is because the Illinois Probate Act voids any gift made in favor of a witness or a witness’s spouse. Sec. 4-6 An interested witness will only receive their gift under the Will if he/she would have otherwise benefited under the state laws of intestacy. However, the benefit is restricted to the intestacy amount. Never use a family member, beneficiary or their spouse to witness your Illinois Last Will and Testament.

Revoking an Illinois Will

Revoking a Will means to cancel it so it no longer applies. This entails strict requirements which must be followed. Illinois requires the testator to either:

  • Burn, cancel, tear or obliterate the Will; or

 

  • Execute a later Will or some other instrument declaring the revocation. (This document must be signed and attested in the same manner as a new Illinois Will). Sec 4-7

 

If not revoked properly, your Will may still be held valid to the extent of any inconsistency with any later Wills. This gives rise to problems during probate. Therefore, it is crucial that if you wish to change or cancel your Will, that any revocation be done properly. Probate lawyers advise to undertake both methods of revocation (ie: expressly revoking all former Wills in a New Will and physically destroying your former Illinois Will).

Changing Your Illinois Will

An Illinois Last Will and Testament may be changed by Codicil or by revoking and making a New Will. A Codicil is a document which specifically amends the relevant sections of a Will. It is signed and attested in the same manner as a Will. Depending on its complexity, a Codicil usually costs around the same amount to prepare as a new simple Will. Usually, it is more effective to simply revoke the former Will (see above) and just make a brand new Illinois Will. This method eliminates complexities of interpreting and probating two documents.

Self-Proving Affidavits

It is always best to have your witnesses sign an affidavit at the same time as making the Will, just in case they cannot be found or they die or become incapacitated by the time it comes to probate. The affidavits need to contain the statements as outlined in section 6-4 and must be signed by an officer authorized to take oaths in Illinois. Although such affidavits are optional, they can be very helpful.

Does divorce cancel an Illinois Will?

No. However, a divorce or declaration of invalidity of marriage does revoke (cancel) any legacy, interest or power of appointment given to your former spouse. In this sense, your Illinois Last Will and Testament will be interpreted as though your former spouse had died before you. 4-7 Even though your spouse is eliminated from the Will, you should still make a new Last Will and Testament to ensure your wishes are carried out.

Trust for your Pet Animal

You may create a trust in your Illinois Will for the care of one or more of your designated domestic or pet animals. This means you may leave an amount of money or property to be held on trust for the benefit of your pet. The person you nominate as trustee will have the responsibility of managing the trust property. You may designate the same or a different person to inherit your pet. However, that person is not obliged to take on the responsibility. The trust created under your Illinois Last Will and Testament ends once your last remaining pet dies. You should stipulate who is to receive any remaining balance. You may also name a person to enforce the terms of the trust on behalf of your animals. You cannot simply leave all your property to your pet. The court has the power to reduce any amount it considers to substantially exceed what’s required for the intended use. The right to create a pet trust in your Illinois Last Will is pursuant to section 15.2 of the Illinois Trusts and Trustees Act.

Illinois Wills and Probate

When a testator dies, the Illinois Will needs to be admitted to probate (proved and accepted by the court) in order to be effective. This section covers the probate process of Illinois Wills.

Filing the Will

Any person who has an Illinois Last Will and Testament in their possession must file it with the clerk of court immediately upon the testator’s death. 6-1

Petition for Probate

If the Will names an executor, that person must file a petition with the court requesting the Illinois Will to be admitted to probate. The executor has 30 days to either file the petition or a declaration refusing to act. 6-3 Any person desiring to probate the Will also has the right to file a petition for probate. 6-2 If the executor fails to petition within the 30 days, then the court may proceed to probate the Illinois Last Will without a petition (unless probate is unnecessary). 6-3

Notice of Probate Hearing

Notice of the hearing needs to be given to all such interested persons as the court directs in accordance with Illinois Probate Law. 6-3

Proving the Will

An Illinois Will may be proved by statements of the witnesses, whether by oral testimony, affidavit or in the Will itself. The court may accept the statements and admit the Last Will to probate merely on the face of the attestation clauses in the Will (unless there is proof of fraud, forgery, compulsion or other improper conduct which would be deemed sufficient to invalidate the Will). 6-4 If there are objections to the Illinois Last Will & Testament, further proof will be required of the attesting witnesses.

Letters Testamentary

When an Illinois Willis admitted to probate, the court must also issue letters testamentary to the executor named in the Will. Letters is the document formally appointing the executor as personal representative. 6-8 If the executor refuses, does not qualify or is not named, then the court may issue ‘letters of administration with the will annexed’ to appoint a personal representative. 6-9 Preference is given in the following order: s9-3

  • Spouse;

 

  • A legatee (children legatees given preference);

 

 

  • The decedent’s children;

 

 

  • Grandchildren

 

 

  • Parents;

 

 

  • Brothers and sisters;

 

 

  • Nearest kindred

 

 

  • Representative of the estate of a deceased ward;

 

 

  • Public administrator

 

 

  • A creditor of the estate.

 

Small Estates

Where an estate is worth $100,000 or less, personal property may be transferred using an affidavit. The Illinois Will needs to be filed with the clerk of court and a certified copy attached to the affidavit. Once the affidavit is accepted by the court, it may be used to collect or transfer the decedent’s property to the persons entitled or to the appointed agent. S25-1

Illinois Estate Tax

Where the decedent died in 2009 an Illinois estate tax return (Form 700) needs to be filed if the estate is worth $2,000,000 or more. The representative must also complete a federal return Form 706 even if no federal tax return is required to be filed with the IRS. The forms must be filed with the estate tax section of the Illinois attorney general’s office.

Contesting an Illinois Will

Time Limits

An Illinois Will must be contested within 6 months after it is admitted to probate. 8-1

Procedure

A petition needs to be filed with the court to contest the validity of the Will. The person filing the petition (the petitioner) must serve a copy of the petition on the personal representative and to each heir and legatee as noted on the petition for probate. The contestant may request a trial by jury. The personal representative is under a duty to defend the Illinois Last Will and Testament. If the personal representative refuses or if there is no representative, the court may appoint a special administrator to defend the proceedings. At trial, the person challenging the Last Will begins by submitting proof to establish that the Will is invalid. Once his/her case is closed, the proponent of the Will may present evidence to sustain the legal Will. 8-1(c)

Proper Reasons

A person cannot challenge an Illinois Will simply on the belief that they should have received a larger portion of the estate. There needs to be valid grounds for the contest. These include fraud, forgery, compulsion or some other improper conduct the court deems sufficient to invalidate the Will. The essence of the proceedings is whether the Illinois Will is valid. Was it signed and witnessed correctly and under normal circumstances? If not, then you may bring a case to challenge it.

Disinheriting Children or Spouse

To exclude a spouse or child from your Illinois Will, what you need to do: The Illinois Probate Act provides protection to family members (the spouse and to a lesser extent, children) who are excluded or left nominal amounts in a Will. You should be aware that merely omitting to name a child or spouse in your Will is not effective to disinherit them. You need to seek guidance from a lawyer as to the wording of clauses to be used in your Illinois Last Will and Testament and other matters you may need to attend to. Here are the minimum awards provided by the statute:

Entitlements of the Spouse

    • A reasonable allowance of at least $20,000 (plus $10,000 for each minor and adult dependent child living with the spouse). The court may award a higher amount depending on your spouse’s living conditions and what’s required for his/her proper support and the support of such children for 9 months after your death. The allowance is made in addition to benefits you provide for your spouse in your Illinois Will (unless the Will specifically states the provision you make is in lieu of such allowance). 15-1

Awards to Children

  • A minimum of $10,000 to each minor and adult dependent child (paid to the spouse or guardian to support the child for a period of 9 months). 15-1 & 15-2

 

  • If there is no surviving spouse, the minor and dependent adult children receive an additional minimum of $20,000 to be shared or apportioned according to the court.

 

Children Born after the Will

A Will made prior to the birth of your child is not an effective way of disinheriting. If that Will does not provide for your child and does not intentionally disinherit them, then the omitted child is entitled to the same share of your estate as though you had died intestate (without making any Illinois Will). The other beneficiaries’ shares abate (reduce) proportionately in order to provide for that child’s share. 4-10

Intestacy – Dying without an Illinois Will

If you die without making an Illinois Last Will and Testament (dying intestate) your property passes in accordance with the Illinois intestacy law. If you are married, your spouse is provided for first. The estate of an unmarried person passes to his/her children. For specific distributions further down the line, see below.

If you are married and die without an Illinois Will:

If you don’t have any descendants (children, grandchildren etc), your spouse receives the entire estate. If you have children or other descendants (grandchildren, great grandchildren and so on) then your spouse only receives one half of your estate. Your descendants receive the balance ‘per stirpes’. This means it is divided equally between your children. Grandchildren take their parent’s share if your child has died before you (and so it continues). If a child has died without any descendants, then that’s child’s share reverts back to the surviving children equally.

Unmarried or widowed persons who pass away without an Illinois Will:

Firstly, the whole estate passes to your descendants per stirpes. See the paragraph above as to what this means. If there are no children, grandchildren or great-grandchildren who survive you, then your estate is divided equally between your brothers and sisters (or their descendants if one has passed away) and your parents. If one of your parents has died, then the surviving parent receives a double share. In situations where you have no parents, brothers, sisters or their descendants surviving, your estate is divided into two equal parts. One part is inherited by your maternal grandparents or the survivor of them. If none survive then their descendants inherit that half share per stirpes. The other half is distributed to your paternal family in the same manner. If there are no survivors on either the paternal or maternal side, then the other side inherits the whole estate. If you have no surviving great-grandparents or other kindred, then your real and personal property escheats to the appropriate Illinois counties in accordance with the legislation.

Intestacy Examples

How do the intestacy rules apply to your situation? To help you understand the basic intestate succession rules, here are some case studies which show what happens to property when a resident dies without an Illinois Will: Illinois Will was not made by wife. How much do husband and children receive? Donna passed away without a Will. She had two children with her husband David. Her estate is worth $300,000. Who gets what? David: $150,000, David & Donna’s Children: $75,000 each. Share of wife, children and stepchild when husband dies without a Will: George died leaving an estate of $300,000. He had no will. George had two children to his wife Lisa, to whom he was married for 15 years. George also has a child from a former partner. Who gets what? Lisa: $150,000, Lisa & George’s 2 children: $50,000 each, George’s child from former partner: $50,000. Intestacy rules when wife dies, leaving husband, children and husband’s child from former partner: Karen died leaving $300,000 and no will. She has two children to her husband Kevin. Kevin also has a child from a former partner. Who gets what? Kevin: $150,000, Kevin & Karen’s children: $75,000 each, Kevin’s child from former partner: Nil. How much do children and grandchildren receive when a widowed grandfather dies without an Illinois Will? Jack died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Illinois Intestacy Law

See exactly what the statute says. Below are excerpts from the Illinois Probate Act which govern distribution of assets for persons who die without an Illinois Last Will and Testament:

”Sec. 2 1. Rules of descent and distribution. The intestate real and personal estate of a resident decedent and the intestate real estate in this State of a nonresident decedent, after all just claims against his estate are fully paid, descends and shall be distributed as follows: (a) If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes. (b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent’s descendants per stirpes. (c) If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse. (d) If there is no surviving spouse or descendant but a parent, brother, sister or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living. (e) If there is no surviving spouse, descendant, parent, brother, sister or descendant of a brother or sister of the decedent but a grandparent or descendant of a grandparent of the decedent: (1) 1/2 of the entire estate to the decedent’s maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes, and (2) 1/2 of the entire estate to the decedent’s paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving paternal grandparent or descendant of a paternal grandparent, but a maternal grandparent or descendant of a maternal grandparent of the decedent: the entire estate to the decedent’s maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving maternal grandparent or descendant of a maternal grandparent, but a paternal grandparent or descendant of a paternal grandparent of the decedent: the entire estate to the decedent’s paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. (f) If there is no surviving spouse, descendant, parent, brother, sister, descendant of a brother or sister or grandparent or descendant of a grandparent of the decedent: (1) 1/2 of the entire estate to the decedent’s maternal great grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes, and (2) 1/2 of the entire estate to the decedent’s paternal great grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving paternal great grandparent or descendant of a paternal great grandparent, but a maternal great grandparent or descendant of a maternal great grandparent of the decedent: the entire estate to the decedent’s maternal great grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving maternal great grandparent or descendant of a maternal great grandparent, but a paternal great grandparent or descendant of a paternal great grandparent of the decedent: the entire estate to the decedent’s paternal great grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. (g) If there is no surviving spouse, descendant, parent, brother, sister, descendant of a brother or sister, grandparent, descendant of a grandparent, great grandparent or descendant of a great grandparent of the decedent: the entire estate in equal parts to the nearest kindred of the decedent in equal degree (computing by the rules of the civil law) and without representation. (h) If there is no surviving spouse and no known kindred of the decedent: the real estate escheats to the county in which it is located; the personal estate physically located within this State and the personal estate physically located or held outside this State which is the subject of ancillary administration of an estate being administered within this State escheats to the county of which the decedent was a resident, or, if the decedent was not a resident of this State, to the county in which it is located; all other personal property of the decedent of every class and character, wherever situate, or the proceeds thereof, shall escheat to this State and be delivered to the State Treasurer pursuant to the Uniform Disposition of Unclaimed Property Act. In no case is there any distinction between the kindred of the whole and the half blood.”

Illinois Will Forms

Writing a Will is the most important steps you can take to manage what happens after your death. This document is best prepared by an attorney. If you wish to write a Will yourself, utilise the myriad of tools available on the internet including Will forms, Will templates and even Will software.

Note: Making a Will can be confusing. Before making a Illinois Last Will and Testament, we recommend you obtain a guide which provides vital information on how to make a Will. It should also give tips on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents) to help make a Will:

Illinois Will Form: Married with adult children
Illinois Will Form: Married with adult and/or minor children, includes a trust for minor children
Illinois Will Form: Married with no children

Illinois Will Form: Single with adult children
Illinois Will Form: Single with adult and/or minor children, includes a trust for minor children
Illinois Will Form: Single with no children

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