How to Make a Will in Illinois

Drafting a final will and testament is essential for strategizing the allocation of your estate, encompassing your real estate, personal belongings, and monetary assets, after your demise. Although a will is not legally obligatory, the absence of a will means that the transfer of an estate’s assets will be determined by state laws, known as laws of intestacy, and distribution under the intestacy laws may conflict with the decedent’s desires. Wills provide the testator with the means to guarantee the well-being of their spouse, children, other loved ones, and even pets following their demise. Creating a will enables the testator to choose the estate executor, who will execute the instructions outlined in the will.

What are the steps to create a will in Illinois?

Below is a checklist outlining the necessary steps for creating a will, especially for those creating their wills online:

1.    Determine your assets and liabilities

In this way, the estate executor does not have to search records or make inquiries to determine your assets and obligations, guaranteeing smoother estate management.

2.    Determine your beneficiaries

A beneficiary is an individual designated in a testament document, such as a will, to inherit assets from a decedent’s estate. By listing your beneficiaries, you guarantee that your estate will be distributed to the individuals you have designated. Please designate your beneficiaries to avoid unintended individuals inheriting your assets.

3.    Select an executor

An executor is the person designated in the will to oversee the distribution of the deceased person’s assets and liabilities, ensuring their desires are carried out. This implies that the executor should handle the assets and liabilities to ensure all obligations are settled and the remaining possessions are distributed to the individuals expressly named in the deceased person’s will. Where an executor is not appointed in a will, the court will appoint one instead. However, the court’s choice may not necessarily align with the decedent’s preferred candidate.

4.    Select a guardian for your children or pets.

You can choose a guardian to take care of your children or pets via a will, which will provide you with the peace of mind that those persons you hold dear will be cared for by someone in whom you have complete faith.

 5.    Select someone to oversee the management of children’s assets

In a manner analogous to choosing a guardian to look out for your kid’s welfare, you ensure that any assets left to your child are managed by someone in whom you have complete faith.

6.    Create your last will and testament.

A will is crucial as it guarantees that your inheritance is transferred according to your wishes. Failure to create a will can lead to intestate succession, perhaps resulting in the distribution of your assets contrary to your wishes.

7.    Execute your will in the presence of witnesses.

Naturally, your signature is crucial to creating a legitimate will. Your signature serves as a symbolic mark that affirms the authenticity of the instructions outlined in your will. No one can verify the validity of your will unless a witness attests to its execution. Because of this, your will may face challenges in probate court or even be nullified. Your state’s intestacy laws will govern the distribution of your inheritance if your will is declared invalid. Where you don’t get a witness to your will, it can lead to complications and delays for your loved ones, and they might not get what you want.

8.    Ensure the secure storage of your last will and testament

Choosing a reliable and protected storage facility for your will is advisable, ensuring its preservation and accessibility following your demise. In the event that a will cannot be located after your death, the distribution of your wealth will be carried out according to intestacy laws.

What happens if I don’t have a will?

Where you don’t have a will, intestacy laws will apply since you will have died intestate. Contact LegalPen, the best online will maker, to assist in drafting your will.

What are the requirements for writing a last will and testament in Illinois?

To create a will in Illinois, it is necessary for individuals who need a will to meet the following criteria:

1.    You must be at least 18 years old

The age requirement is intended to ensure that the testator has the maturity to create a will.

2.    You must have a sound mind and memory.

Attaining the status of being “of sound mind and memory” is not a problematic need to fulfill, and most individuals who create a will usually satisfy this criterion, even if they have forgetfulness or physical ailments. According to Illinois law, if a court has ruled that the person making a will is incapacitated and has been designated a plenary or limited guardian by the court, it is assumed that they are not of sound mind and memory.

How often should you review and update your Illinois will?

Every individual in Illinois should revise their will following a significant life event. Certain modifications are apparent, although even little alterations may necessitate a rewrite. Some of the various life events and situations that may need you to revise your will include the following:

1. You have undergone a divorce or legal separation

A prevalent motive for persons to revise their will is the termination of their marriage. Where you are currently divorced or in the process of becoming divorced, it is likely you do not wish for your soon-to-be former spouse to receive your property after your death.

2. Recent tax regulations

Federal or state tax legislation changes may make your existing will inapplicable. For instance, your executor may need to find a workaround to pay estate taxes if you don’t include it in your will. Given the new regulations, the amount your estate may be required to pay may exceed your expectations.

 3. Additions to the family

Adding a family member prompts you to reassess and revise your estate plan, such as appointing a guardian for minors or setting up a trust.

4. You have relocated to a different state.

It is essential to update your will to reflect the laws of the state where you will be residing if you have already left Illinois or intend to do so. Remember that the state where you lived at the time of your death determines how your will is administered rather than where it was drafted. Transferring to a different state might not necessitate adjustments, but verifying this is wise.

 5. You have undergone significant alterations in your financial situation

Any significant modifications in one’s financial situation should prompt a thorough examination and potential adjustment of one’s will. For instance, to ensure that a specific beneficiary gets a portion of your estate after selling off assets assigned to them, you may choose to redistribute your remaining assets.

 6. The dynamics of your relationships have undergone modifications since the initial creation of your will.

Relationships inherently evolve throughout time, and occasionally, the folks with whom we were once intimately connected no longer hold a meaningful role in our lives. Likewise, over time, you may develop a strong affection for particular acquaintances or family members.

Drafting a last will and testament is crucial. Nevertheless, it is not a task that can be completed in a single attempt. It is important to periodically examine your will and verify that it accurately represents your present desires about the distribution of your assets after your demise. After making changes to your will, it is wise to have a lawyer review it. Unbeknownst to them, some individuals make errors while revising their will.

How to revise and update your will in Illinois

Individuals with a will that no longer accurately represents their desires can modify it. There are two primary methods for modifying a will:

1. Creating a new will

The most direct approach is to nullify your previous will and generate a fresh one. This guarantees clarity regarding the document that possesses legal jurisdiction. Drafting a fresh will has emerged as the favored method for modifying a will. However, the previous will must be unequivocally revoked.

2. Making changes to an existing will through a codicil

A codicil is a supplementary document to a will that permits modifications without necessitating a whole new document. Nevertheless, the execution of the document must adhere to the identical procedures as the original will, including the presence of witnesses and notarization, to ensure its legal validity. Codicils are not designed to serve as a comprehensive will, and as such, this approach is not favored due to the potential risks it poses; the testator has two legally binding testamentary instruments, and the loss of either one might give rise to challenges to the will.

What makes a will valid in Illinois?

The conditions for valid wills in Illinois are outlined in Article 4 of the Probate Act. Regardless of whether you choose to obtain your will physically or go for wills online, take note that the requirements for an Illinois last will and testament include the following:

1.     Age

To create a legally binding will in Illinois, you must have attained 18 years. The minimum age requirement is based on the assumption that a person at least 18 years old possesses the level of maturity required to create a will and all that goes along with it.

2.     Testamentary capacity

It is necessary to have a testamentary capacity to form a valid will and testament. Testamentary capacity involves a sound mind and memory, which is a person’s mental state when creating their will. A person with a sound mind and memory can comprehend their actions, have a comprehensive awareness of the property’s nature and scope, understand their connection with their beneficiaries, and understand the significance and consequences of drafting a will. Testamentary capacity is essential as it ensures that the testator is entirely conscious of what they are doing and is not operating under the influence of another person when making the will.

3.     Attestation

The will must be signed by the testator or by another individual in the testator’s name, in the presence of the testator, and under the testator’s instruction. The testator’s signature serves as a symbolic representation that confirms the authenticity of the instructions outlined in their will.

4.     Witnesses

To establish the legal validity of your will, it must be witnessed and signed by two credible persons with no personal interest in the contents of the will, otherwise referred to as disinterested witnesses. In addition to being there to see the testator’s execution of the document, the two witnesses are additionally present to observe each other signing the will. Every witness must sign the will in the presence of the testator. This witnessing procedure verifies that you willingly and correctly executed the will in the presence of the witnesses. This validation technique may be strengthened by utilizing a self-proving affidavit, which provides additional assurance regarding the legitimacy of your will.

5.     Written form

A written will is required in the state of Illinois. Holographic wills are not recognized as legally valid in Illinois because the state stipulates that a will must be formally witnessed by two witnesses to be considered valid. Having a written will is essential since there is less room for fraud or misunderstanding with a written will.

Can a handwritten will be valid in Illinois?

Yes, a handwritten will can be valid in Illinois. The law does not specify any requirements regarding the creation of the will other than that it must be in writing. From a legal perspective, a handwritten will satisfies the criteria for being considered a written will. Therefore, any will, including a Do-it-yourself (DIY) will that is properly executed and attested, is considered legally legitimate. According to Illinois law, an unwitnessed handwritten will is referred to as a holographic will and is considered invalid. At LegalPen, we offer a one-stop solution for writing a will in Illinois.

How do I sign my Illinois will?

You must execute your will in the presence of two witnesses, and your witnesses must additionally sign your will in your presence. Both witnesses must not be beneficiaries of the will. A beneficiary who serves as a witness to the will may forfeit their entitlement to the bequest.

What can I include in an online will in Illinois?

The following is a list of some of the things that might be included in your online last will and testament in Illinois:

1. A comprehensive record of your assets
2. A compilation of the individuals who will get benefits or inheritances from you
3. Donations directed toward particular persons or groups
4. The individual chosen to administer your estate is known as your executor
5. An appointed guardian for any pets or underage or dependent children
6. An appointed individual responsible for overseeing property management on behalf of dependent children
7. Final instructions on the disposition of your body, funeral arrangements, burial preferences, cremation, and related matters.
8. Any last directives or remarks for your cherished persons

Types of assets covered in an Illinois will

The types of assets covered in an Illinois will are as follows:

1. All of your accounts are held at a bank or any other financial institution. You don’t have to include a bequest in your will for a joint bank account or one that names a beneficiary; these accounts will avoid probate.
2. Any real estate property that you possess. Specify the location of any relevant documents, including property titles and deeds and any other pertinent information.
3. Investment assets. Include the names of the institutions that hold these assets, if you have appointed an investment advisor to oversee their management, and any relevant login credentials in your will. Be careful not to leave stocks or bonds with a beneficiary in your will since you don’t need to mention these assets in your will, as they can transfer straight to your specified beneficiary without going through probate.
4. Personal items. Please note in your will any personal items you own, such as jewelry, and have them bequeathed to specific individuals or groups.
5. Businesses. Be sure to include all pertinent details on your business in your estate plan.
6. Digital assets. You can safeguard your digital assets, which are just as valuable as your physical ones, by including them in your estate plan and preserving them in a digital vault.
7. Pets. The law considers pets property; thus, you can choose a guardian in your will to care for your pet, give your pet care instructions, and allocate money for its care.

Can I revoke or change my will in Illinois?

Yes, you can revoke or change your will in Illinois.

How do you revoke or change your will in Illinois?

In Illinois, aside from updating wills, individuals can revoke or modify their wills at any moment. You can revoke your will by:

1. Personally burning, canceling, tearing, or obliterating your will
2. Instructing someone to burn, cancel, tear, or obliterate your will in your presence
3. Creating a new will that explicitly revokes the previous one
4. Making a new will that contradicts the provisions of the old will
5. Create a document that formally declares the revocation of your will while adhering to the same procedures and requirements followed while making the initial will.

In the event that you want to revoke or change your will or are wondering how to update it, kindly contact LegalPen.

Can I make a digital or electronic will in Illinois?

Yes, you can make a digital and electronic will in Illinois. Electronic wills are allowed under specific conditions according to Illinois law. Although not commonly used, they are becoming more popular and may even be modified digitally following stringent legal procedures. The Electronic Wills and Remote Witnesses Act was signed into law by the governor of Illinois on July 26, 2021. The legislation permits individuals to make and execute electronic Wills in Illinois, ensuring their legal validity.

Who can witness a will in Illinois?

Wills can be witnessed in Illinois by anybody considered “credible.” It is often advised that the witnesses to the will be “disinterested,” meaning they are not beneficiaries of the will. The signing of a will by a witness interested in the will does not render the will invalid, but the gift to them is considered null and void unless there are at least two witnesses to the will who are not interested in the will.

Where a witness interested in the will would be a beneficiary if the testator passed away without leaving a will, then the witness will be entitled to receive the gift up to the amount they would have gotten if the will had not been produced.

In Illinois, you are not permitted to serve as a witness to a will if:

1. You have not attained 18 years
2. You lack a sound mind and memory
3. You are a beneficiary or a spouse or child of a beneficiary
4. You stand to gain from the will
5. You are a creditor
6. Where you are witnessing remotely, you are not physically present in the United States.

Should my will name an Executor?

Yes, your will should name an executor. An executor is a person appointed by a decedent in their will to look to the management of their estate after their passing. In the event that you do not choose an executor, the court that handles probate will select someone to take on the responsibility of distributing your estate. Although someone may be named as executor in a will, it only makes them the official executor once such individual is formally appointed as the estate’s executor by the circuit court.

The named executor is granted the appointment in an Illinois circuit court through the following means:

1. Making sure the relevant circuit court receives the testator’s final will
2. When probate is required, the individual can ask the circuit court to make them estate executors.
3. Finding the beneficiaries and everyone else who has a stake in the estate.

What are the Illinois will executor requirements?

The Illinois will executor requirements are:

1.    Resident of the United States

Illinois may reject individuals residing in a different state. In the case of an out-of-state executor, an Illinois probate court may mandate the posting of a bond. That possibility remains, regardless of whether the will stipulates that the executor is exempt from posting bail.

2.    At least 18 years old

In Illinois, an executor is required to be at least 18 years old, with the assumption that at 18, one may possess the maturity needed to undertake the role.

3.    Sound mind

A court finding that the person is incapacitated disqualifies them from being an executor. No one can be appointed executor in Illinois if determined to be a “disabled person.” Your executor must not, therefore, be unable to support close family members owing to drug and alcohol abuse, gambling, slackness or debauchery, be unable to handle one’s affairs due to mental or physical incapacity, have a diagnosis of fetal alcohol syndrome

4.    Not incarcerated

In addition, being convicted of a felony disqualifies one from being an executor. However, you can appoint someone with a felony conviction as your executor if you meet the following conditions: you have acknowledged in your will that you are aware of the sentence; they are not legally barred from inheriting from you; they have not been convicted of financial crimes; and they meet all other executor qualifications.

What happens to a will after death in Illinois?

Under the laws of Illinois, anyone possessing the will of a decedent must submit it to the Clerk of the Circuit Court of the county in which that person resided within thirty days of the testator’s death becoming known to him. Where a person knowingly conceals the will for thirty days or more after learning of the death of the deceased, or if he modifies or destroys a Will, he is susceptible to criminal prosecution on a charge of theft.

After the will has been filed, anyone has the right to submit a written petition to the court requesting the will’s admission for probate. This petition additionally seeks to appoint an executor for the estate, identify the decedent’s heirs, and officially initiate the probate process. An individual designated executor in a Will must submit the petition within 30 days of becoming aware of their appointment. Not complying with this requirement may lead to the loss of that nomination.

What is the impact of marriage and divorce on your Illinois will

Upon marriage, no automatic modifications are made to your will. Consequently, the content of your will remains unaltered after marriage unless you take the necessary steps to revise it.

Divorce or annulment nullifies any bequest or entitlement granted to the testator’s ex-spouse in a will signed before the issuance of the final order. Any provision in your will that designates your ex-spouse as the executor is additionally invalidated. While the entire will is not invalidated, any bequest to a previous spouse will be considered as if the former spouse had passed away before the testator.

Where your ex-spouse is the sole beneficiary specified in your will, it would have the same legal impact as if you had died intestate. Provisions about any previous spouse, regardless of the time of marriage, will be nullified upon divorce or annulment. Per the legislation, the only way to revoke the bequests that you have made to your spouse is to get a final order of dissolution of marriage or a declaration of invalidity of marriage and eliminate the risk of your marriage still being legally recognized at the time of your passing.

The testator must draft and sign a new will if they desire that the former spouse be given property in the will, which can occur in cases of amicable divorce or where children are involved.

Do all wills in Illinois have to go through probate?

No, not all wills in Illinois have to go through probate. Probate is a legal procedure in which a court confirms the validity of a will and supervises its implementation, ensuring that all assets are distributed per the deceased person’s desires. Nevertheless, the probate procedure can additionally be intricate, lengthy, and redundant in some situations. Therefore, many individuals are keen on minimizing or eradicating the probate procedure. In certain instances, wills must undergo probate proceedings before the distribution of any assets. However, not all wills are required to undergo this procedure.

The type and monetary worth of the assets bequeathed will determine whether probate is necessary. In most cases, probate procedures are only needed when:

1. The total worth of the decedent’s assets exceeds $100,000. For estates valued below $100,000, heirs can utilize an affidavit to assert their entitlement to the inheritance.
2. When the assets are owned by the decedent solely rather than jointly.

Some assets bypass the probate process entirely:

1. Probate is unnecessary for transferring assets held under joint tenancy or tenancy by the entirety, as these assets are immediately passed to the surviving owner.
2. The distribution of assets with a beneficiary designate, such as retirement funds, payable-on-death accounts, and others, does not need the assets to go through probate.
3. Assets maintained in trusts circumvent probate, making it a primary motivation for individuals to utilize trusts to distribute assets to their beneficiaries.
4. Another way to avoid probate is to use a transfer-on-death deed to transfer real estate.

Is Illinois a community property state?

No, Illinois is not a community property state. The state of Illinois is an equitable division of property state. Consequently, when the court is tasked with distributing property, they allocate it according to their perception of equity rather than a strict 50/50 division. The court will distribute the property according to each partner’s relative contributions and circumstances.

How is Illinois intestate succession done?

In the event of your death in Illinois without a will, your assets will be allocated per the state’s intestate succession laws. The distribution of inheritance is contingent upon the presence of a surviving spouse, children, parents, or other immediate family members at the time of your demise. Intestacy laws distribute a person’s assets according to the familial connections that exist at the time of their death.

Where an individual is married and dies in Illinois without a will, the intestate succession rules will be enforced as follows:

1. Where an individual has no spouse but has children, the children will inherit the entire estate
2. In the event, an individual has a spouse but no children, the spouse will inherit the whole estate
3. In the case of an individual having both a spouse and children, the spouse will receive 50% of the estate, while the children will equally share the remaining 50%.
4. Supposing an individual has parents but no spouse or children, the parents will inherit the entire estate.
5. Where an individual has siblings but no spouse, children, or parents, the siblings will inherit the entire estate.

How is estate and inheritance tax in Illinois done?

Illinois has a $4 million threshold for estate taxes. As a result, Illinois will not collect any inheritance taxes from you if your whole estate is less than $4 million. A progressive estate tax rate applies to estates worth more than $4 million. Your heirs must pay this tax before any money can be distributed. When a married couple passes away, the combined exemption remains at $4 million because, unlike in other states.

In Illinois, the estate tax rate is progressive, meaning it increases as the value of the estate increases. The highest rate that applies is 16%. It is important to note that in Illinois, taxes are levied on the whole estate if its value exceeds the threshold of $4 million.

Under Illinois legislation, the Illinois Attorney General is responsible for overseeing the Illinois Estate Tax. Therefore, estate taxes must be submitted to the Office of the Attorney General. All payments for Illinois estate tax, including interest and penalties, must be sent directly to the Illinois State Treasurer.

What are the differences between a simple will and a holographic will in Illinois?

The main difference between a simple will and a holographic will is that although a holographic will is a handwritten will, it lacks witness attestation and is considered invalid under Illinois law.