How To Make a Will in Illinois
Step-By-Step Guide for creating a Last Will and Testament In Illinois
Introduction: What is a Will?
A will is a legal document that specifies how your assets and property will be distributed after your death. It enables you to make key decisions, such as appointing guardians for your minor children to ensure their well-being. Without a will, the state of Illinois will determine the division of your estate, which might not align with your preferences. By creating a will, you maintain control over these crucial choices and safeguard your loved ones.
Laws for Creating a Will in Illinois
When making a will in Illinois, you must adhere to specific legal requirements. Failing to meet these criteria could result in your will being invalid, causing complications during probate. Below are the key legal requirements for creating a Will in Illinois:
You must be at least 18 years old.
You must be of sound mind:
This means you understand what a Will is, what your assets are, and how you plan to distribute them.
The Will must be in writing and signed by you and two credible witnesses:
Handwritten (holographic) wills and Oral wills are not recognized in Illinois.
By following Illinois’s will laws, you can ensure your estate is distributed according to your wishes. If your will doesn’t meet these legal requirements, it could be contested or ruled invalid, leaving your estate’s distribution up to the court.
Step-by-Step:
How to Draft Your Will in Illinois
1. Choose an Executor
Your executor is responsible for managing your estate and ensuring your will is carried out after your death. They are responsible for distributing assets, settling debts, and completing necessary legal procedures.
When selecting an executor, choose someone who is organized, trustworthy, and capable of managing these important tasks. Often, people appoint a family member, close friend, or a professional advisor.
Consider naming a backup executor as well, to step in if your primary choice is unable or unwilling to serve.
2. Name a Guardian for Minor Children
If you have minor children (or plan to), it’s important to name a guardian to care for them in the event of your death. This guardian will make key decisions regarding their education, healthcare, and overall well-being.
While naming a guardian is optional, it is crucial for parents. Without a designated guardian, the court will choose one, potentially against your preferences.
It’s wise to also name a backup guardian, in case your primary choice is unable or unwilling to serve.
3. Name a Pet Carer
Illinois law permits the inclusion of provisions in your will for your pets’ care. You can appoint someone to look after them and allocate resources for their maintenance, ensuring they are well cared for after you’re gone.
While optional, this is an important step for pet owners. Without a designated carer, your executor will need to handle these responsibilities, which may not align with your specific wishes for your pets’ care. Naming a specific individual helps ensure your pets are cared for according to your preferences.
4. Decide who inherits your Residual Estate
The residual estate consists of what remains after specific gifts and expenses are distributed. You can appoint one or more beneficiaries—such as family members, friends, or charitable organizations—to inherit these remaining assets. Ensure you clearly list their full legal names and specify the proportion each should receive. Naming alternate beneficiaries is also prudent, in case your primary choices are unable or unwilling to accept the inheritance, thus ensuring a seamless distribution of your estate.
5. Gifting Specific Items
If you wish to leave specific items—such as family heirlooms, jewelry, property, or cash—to someone, you can designate these in your will. Be as detailed as possible to prevent confusion or disputes later on. Including descriptions, appraisals, or serial numbers can provide clarity. It’s a good idea to take an inventory of your assets before drafting your will to ensure nothing is missed or overlooked.
6. Any Additional Instructions or Provisions?
You can include optional instructions in your will, such as how you’d like your burial instructions or directions to sell specific assets. You might also wish to make certain gifts conditional or to be held in trust until beneficiaries reach a particular age. These additional provisions help ensure your specific wishes are honored.
Review Your Will
Confirming Roles in Your Will
Before finalizing your will in Illinois, it’s crucial to confirm that your chosen executors, guardians, and pet caregivers fully understand their responsibilities and are willing to accept them. This ensures that each person is prepared to fulfill their role, reducing the likelihood of complications during the administration of your will.
It’s best to confirm this with both the primary and backup individuals you’ve nominated, ensuring they are willing to take on the responsibility.
Executors
Guardians
Pet Carers
Test Your Will
Before finalizing your will, take time to carefully consider your wishes and account for various potential scenarios, such as beneficiaries predeceasing you or conditions not being met. This foresight ensures your estate is distributed according to your intentions, even in the face of unexpected events.
Signing Your Will
Signing Your Will In Front of Witnesses
Once your will is drafted, the next critical step is printing and signing it. In Illinois, the signing process must meet specific legal requirements for the Will to be valid.
Witness Requirements
In Illinois, to create a valid Will, you must sign the document in the presence of at least two witnesses. These witnesses must:
- Be at least 18 years old.
- Understand that they are witnessing the signing of your will.
- Both witnesses must sign the will after you have signed it, attesting that they were present and that you appeared to be of sound mind when signing.
Note: Witnesses can be named as beneficiaries in Illinois, but this may lead to disputes, so its generally recommended to select disinterested witnesses.
Witnesses vs Notaries
A will doesn’t need to be notarized to be valid in Illinois, but a self-proving affidavit (notarized) can speed up probate by eliminating the need for witnesses to testify.
Storing Your Will
Keep Your Will Safe
After your will is signed and witnessed, it’s crucial to store the original document securely. In Illinois, only the original signed copy is legally binding, not a digital version. Losing or damaging it could cause complications and delay the distribution of your estate.
Here are some options for securely storing your will:
Store at Home
Use a fireproof safe and ensure your executor knows its location.
With an Attorney
Many attorneys offer secure storage for original wills.
Trusted Person
Entrust your will to a reliable family member or friend.
Although digital copies can be useful for reference, only the original signed document holds legal weight. Make sure your executor knows where to find it to avoid any legal complications.
FAQs: Making A Will in Illinois
1. What Are My Options for Making a Will in Illinois?
In Illinois, there are several ways to create a will:
Hiring a Lawyer: Best for complex estates or when specialized legal advice is needed, such as estate tax planning or trusts.
Using an Online Platform: For straightforward estates, platforms like Will Hero offer an affordable, guided process for creating a legally valid will.
Handwritten Will: Illinois does not generally recognize holographic wills (handwritten wills without witnesses). To be valid, your will must be signed by two witnesses.
2. Do I Need a Lawyer to Make a Will in Illinois?
No, a lawyer is not required to create a valid will in Illinois. For simpler estates with clear instructions, you can use an online platform or write a will yourself. However, if your estate is more complex or involves tax planning, trusts, or unique concerns, consulting an attorney can ensure your will is comprehensive, legally sound, and adheres to Illinois state laws
3. Are Handwritten (Holographic) Wills Valid in Illinois?
No, holographic wills are generally not valid in Illinois. To be legally binding, a will in Illinois must be in writing, signed by the testator, and witnessed by two credible witnesses. While handwritten wills are recognized in some states, Illinois requires all wills to meet these witnessing requirements, regardless of whether they are handwritten or typed. It’s important to ensure your will complies with Illinois law to avoid potential legal disputes.
4. How Much Is the Inheritance Tax in Illinois?
Illinois does not have a state inheritance tax, but it does have an estate tax. In 2023, the Illinois estate tax applies to estates exceeding $4 million in value. The tax rate is graduated, ranging from approximately 0.8% to 16%, depending on the value of the estate. Additionally, the federal estate tax may also apply to estates that exceed the federal exemption threshold, which is $12.92 million (as of 2023).
5. Do I Need to Notarize My Will in Illinois?
No, a will does not need to be notarized to be legally valid in Illinois. However, the will must be signed in the presence of at least two witnesses, who also need to sign it. While notarization is not required, it can create a “self-proving” will, which can expedite probate by eliminating the need for the witnesses to testify about the will’s validity. Although helpful, notarization is not a legal requirement in Illinois.
6. Can I Change My Will After It’s Signed?
Yes, you can update or change your will at any time as long as you are of sound mind. There are two primary methods:
- Add a Codicil: A codicil is a legal amendment to your existing will. It must be signed and witnessed just like the original.
- Create a New Will: Draft a new will that explicitly revokes all previous wills and codicils. Destroy old copies to avoid any confusion or disputes.
7. What Happens if I die without a Will?
If you pass away without a will in Illinois, your estate will be distributed based on the state’s intestate succession laws. This means your assets will go to your closest legal relatives as outlined by law, which may not reflect your preferences. If no close relatives are found, the state could claim your property. Additionally, if you have minor children, the court will appoint a guardian, possibly not aligning with your wishes. Creating a will lets you make these important decisions yourself.
8. What is Probate?
Probate is the legal process of validating a will and distributing a deceased person’s estate according to their wishes or Illinois’s intestate succession laws if no will exists. The probate process generally includes:
- Filing the will with the probate court in the county where the deceased lived.
- Appointing an executor (or administrator if none is named).
- Inventorying and valuing assets.
- Paying debts, taxes, and expenses.
- Distributing the remaining assets to beneficiaries.
- Using a simplified “small estate affidavit” for estates valued under $100,000 to bypass full probate.
- Closing the estate once all obligations are met.
This provides a step-by-step outline of probate, including the small estate procedure, which avoids full probate for qualifying estates.
9. How Long Does Probate Take?
The probate process in Illinois typically takes between 6 months and 1 year, depending on the complexity of the estate. Simple estates with no disputes or issues can be completed faster, while more complex estates with multiple assets, debts, or legal challenges can extend the process. The probate period also includes a 6-month window for creditors to file claims against the estate. The duration may vary based on factors like asset complexity, beneficiary disputes, or if the estate qualifies for a simplified “small estate affidavit” process.
10. Can Probate Be Avoided?
Yes, some assets in Illinois can bypass probate through:
- Joint ownership with right of survivorship: Property held in joint tenancy passes directly to the surviving owner.
- Beneficiary designations: Life insurance policies, retirement accounts, and payable-on-death accounts avoid probate if beneficiaries are named.
- Living trusts: Assets transferred into a living trust pass to beneficiaries without probate. Ensure all relevant assets, like real estate and bank accounts, are moved into the trust.
These strategies help avoid probate delays and simplify the estate process.
Ready to Start your Will?
Taking the first step is often the hardest, but Will Hero makes it simple. Our platform offers a free, visual way to draft your will, clarify your wishes, and guide you through estate planning with expert resources and an AI Assistant. You can also test your will with Scenario Testing to ensure it fits different situations. You only need to upgrade when you’re ready to finalize the document. Will Hero aims to make will creation more interactive, visual, and even enjoyable.
Start today and secure your legacy!