Chicago Wills and Trusts Attorney

What an Illinois Will Does and Requirements for a Valid Will

A Last Will and Testament is a formal written document that directs how you want your property distributed after your death. Under the Illinois Probate Act, a will allows you to specify beneficiaries and nominate an executor to administer your estate. You may also include provisions addressing your executor’s bond and designate a person you wish to serve as guardian of your minor children, subject to applicable legal requirements and court approval.

To execute a valid will under the Illinois Probate Act of 1975, you must meet specific statutory requirements:

• Age: You must be at least 18 years old.
• Capacity: You must be of sound mind and memory.
• Written Document: Your will must be in writing.
• Signature and Two Credible Witnesses: You must sign the will, or direct another person to sign it in your presence. At least two credible witnesses must attest to your signature or acknowledgment in your presence.

Illinois law also addresses situations in which a beneficiary or the beneficiary’s spouse witnesses a will. Having a beneficiary serve as a witness does not automatically invalidate the entire will. However, the gift to that beneficiary may be void to the extent it exceeds the share the beneficiary would have received under intestacy rules, unless the will is otherwise properly attested by a sufficient number of independent witnesses.

For additional information, review 755 ILCS 5/4-1 – Capacity of Testator, 755 ILCS 5/4-3 – Signing and Attestation, and 755 ILCS 5/4-6 – Beneficiary or Creditor as Witness.

Updating or Revoking an Illinois Will

As your life circumstances evolve, you may need to update your estate plan. Illinois law provides specific procedures for modifying or revoking a will.

You may update your will by executing a separate amending document called a codicil or by executing a new will that modifies or revokes prior provisions. A codicil must satisfy the applicable statutory signing and witness requirements for a will.

Under Section 4-7 of the Illinois Probate Act, a will may be revoked through specific physical acts performed by the testator, or by another person acting in the testator’s presence and at the testator’s direction and consent. Revocation may also occur through a subsequent will or a properly executed written instrument declaring the revocation.

Because informal changes or handwritten notes may not satisfy the applicable legal requirements, it is important to follow the proper procedures when updating your estate planning documents.

Review 755 ILCS 5/4-7 – Revocation and Revival of Wills for the statutory rules.

What Happens Without a Will in Illinois? Understanding Intestacy and Probate

If you die without a valid will, Illinois law determines how your intestate property is distributed. This process is known as intestate succession.

Under Section 2-1 of the Illinois Probate Act, the distribution of intestate property depends on which family members survive you. For example:

• Surviving spouse and descendants: The surviving spouse generally receives one-half of the estate, while the descendants receive the other half.
• Surviving spouse without descendants: The surviving spouse receives the entire intestate estate.
• Descendants without a surviving spouse: The descendants receive the entire intestate estate.
• No surviving spouse or descendants: The estate may pass to parents, siblings, or other relatives according to the statutory order of inheritance.

These statutory distribution rules may not reflect how you would have chosen to distribute your property among your family members or other beneficiaries.

When an intestate estate requires formal probate administration, the court appoints an administrator to handle the estate. Illinois law establishes an order of preference for individuals eligible to receive letters of administration. The administrator is responsible for handling estate matters, including collecting assets, addressing valid claims and expenses, and distributing the remaining property according to applicable law.

Illinois law also provides a Small Estate Affidavit procedure that may allow qualifying personal property to be transferred without formal probate administration. Eligibility depends on statutory requirements, including the value and nature of the estate and whether probate proceedings are pending or contemplated.

Formal probate timelines vary depending on the estate’s circumstances. For example, Illinois law generally requires the creditor claim deadline to be at least six months after the first publication of notice, or three months after mailing or delivery of notice, whichever is later. Separately, an interested person generally has six months after a will is admitted to probate to contest its validity. These are statutory deadlines, not a guarantee that every probate estate will take at least six months to complete.

Learn more about 755 ILCS 5/2-1 – Rules of Descent and Distribution, 755 ILCS 5/9-3 – Persons Entitled to Preference for Letters of Administration, 755 ILCS 5/25-1 – Small Estate Affidavit, 755 ILCS 5/18-3 – Notice to Creditors, and 755 ILCS 5/8-1 – Contest of Admission of Will to Probate.

When Should You Consider a Trust?

Under the Illinois Trust Code, a trust may be created through several methods, including transferring property to another person as trustee or declaring that you hold identifiable property as trustee. A valid trust must also satisfy statutory requirements concerning the settlor’s capacity, intent, beneficiaries, and the trustee’s duties.

Depending on your financial circumstances, family priorities, and long-term objectives, you may consider different types of trusts.

Revocable Living Trusts

A revocable living trust may allow you to retain significant control over trust property during your lifetime, including the ability to amend or revoke the trust, provided the trust instrument expressly establishes those rights under Illinois law.

A properly structured trust can also provide instructions for managing trust property if you become incapacitated. If the trust provides for a successor trustee, that person may assume responsibility for managing the property held in the trust according to its terms.

After your death, the successor trustee can administer and distribute properly funded trust assets according to the trust agreement, generally without the need for probate administration of those assets.

However, creating a trust does not automatically transfer every asset into it. Property that remains outside the trust may still require probate or another transfer process, depending on its ownership and beneficiary arrangements.

Irrevocable Trusts

An irrevocable trust is generally established without an unrestricted right for the settlor to revoke or amend it. Once property is transferred into an irrevocable trust, the settlor may have limited control over those assets, depending on the trust’s terms.

This type of trust may be considered for more specialized long-term estate planning objectives. Illinois law does provide certain procedures for modifying or terminating a noncharitable irrevocable trust, including circumstances involving beneficiary consent and court approval. Other statutory provisions may also apply depending on the circumstances.

The appropriate trust structure depends on your assets, objectives, beneficiaries, and the legal consequences of transferring property into the trust.

Review the Illinois Trust Code, Section 401 – Methods of Creating a Trust, Section 402 – Requirements for Creation, Section 602 – Revocation or Amendment of Revocable Trust, and Section 411 – Modification or Termination of Noncharitable Irrevocable Trust.

While assets properly titled in a living trust may be administered and distributed without probate court supervision, establishing a trust does not guarantee that an entire estate will avoid probate or reduce overall costs. Assets left outside the trust may still require probate administration. A pour-over will may also be used to direct certain assets into a trust after death, but those assets may still be subject to probate.

Trust administration may also involve expenses, valid creditor claims, and court proceedings when disputes or other legal issues arise. An estate planning attorney can help evaluate whether a trust is appropriate for your circumstances.

Contact Attorney Timothy Henderson

There are many estate planning tools available, and each offers different advantages depending on your individual circumstances. Preparing wills, declarations of trust, living trusts, irrevocable trusts, and other estate planning documents can be complex.

Consult an experienced estate planning attorney who will listen to your needs, review your circumstances, and help develop an estate plan that reflects your goals.

Contact Attorney Timothy Henderson at (312) 444-9400 today to discuss your estate planning needs.