A "will" is a shorthand term most people use to refer to a last will and testament. At a minimum, that documents specifies how your property is distributed upon your passing, and in what amounts or percentages, and who you will entrust with the task of executing your wishes.
You can also get more specific in your bequests (what you leave behind and to whom). You can specify any specific financial gifts, who gets which antiques or grandpa's gold watch. You can designate who takes on certain responsibilities like taking care of minor children, or who takes care of the pets. Most importantly, your will at a minimum gives you back control over what happens instead of leaving things up to the government and the laws of Illinois. Proper drafting and, more importantly, proper execution of a last will and testament that can stand up in probate and prevent challenges to its validity is of vital importance.
Our Illinois estate planning attorney will review your assets and desires to help craft a plan for your estate that suits you and your needs. Making sure your goals for today and tomorrow are met is our personal goal at Fagan, Fagan & Davis. Contact us online or just call or text (847) 635-8200 to learn about wills and your estate planning options.
What is the Purpose of a Will in Illinois?
The person creating a Will is known as a testator. The testator devises property and assets to named beneficiaries in a Will. This gives testators far more control over assets – both while they are alive and after they pass away.
As such, the Will serves four general but important purposes:
- They allow property owners to control what happens to their belongings, even after they die.
- They protect the decedent's heirs, including minor children by appointing a guardian.
- They allow you to appoint who you want to oversee the estate.
- The instructions you leave in your will override the law and your will tells the Court how to handle your estate.
In order for the Will to work as intended, it must adhere to proper procedures in accordance with state law.
General Requirements of a Will in the Illinois
Each state's requirements of a Will and what makes it valid may differ somewhat, but all states have four requirements that are true no matter what.
- The testator must have "testamentary intent", meaning the testator subjectively intended to create the Will.
- The testator must have "testamentary capacity", meaning that the testator understood they were creating the Will at the time of its execution.
- The Will must have been executed without fraud, duress, undue influence, or mistake.
- The Will must have been duly executed through a proper ceremony–– including compliance with Illinois law concerning the manner of signing and verifying the execution of the Will.
Probate
Property governed by intestacy (where you do not have a valid will) must pass through probate court, first, which can be expensive and time-consuming, taking at least six months in Illinois. A valid Will also goes through probate to implement its provisions, but with a will, the Court follows your directions rather than those of a nameless faceless group of people elected to make laws 200 miles away from your entire life.
Because the process of probate is public, takes a minimum of six months to complete, involves significant court costs and attorneys fees, it is worth considering other ways to distribute property according to your wishes that can avoid probate completely. When you speak with the estate planning lawyer at Fagan, Fagan & Davis, we can help you explore whether these are options that are right for you.
The Risks of “Do-It-Yourself” Wills in Illinois
The expense and lack of control that comes from dying intestate, coupled with the perceived costs of hiring a lawyer to write a will, has led to a huge increase in the use of “do-it-yourself” wills. These forms, often found online for a fee, claim to be just as good as a traditional will prepared by an experienced attorney.
These "one size fits all" documents, however, are not tailored to your unique circumstances. The process to create a DIY will is often accompanied by mistakes that open the door for challenges to the validity of a will upon your death. In fact, a court may dismiss the will completely.
Even if you can make the necessary edits to prevent conflicting clauses, confusing and unclear language and manage to consider your options carefully, the proper execution of the will is also a concern, and failure to execute properly can also result in a plan that is vulnerable to attack in probate court.
Finally, even the most minimal estate plan should go beyond a mere will - at the very least, you should consider a Power of Attorney for property, a Power of Attorney for Healthcare, an Advanced Directive or Living Will, and more.
Contact an Attorney for Wills in Illinois
If you are considering making a last will and testament, make sure that you comply with the law and provide very specific instructions in the will. At Fagan, Fagan & Davis, our estate planning attorney helps clients in the Chicago area create strong Wills that comply with state laws so you don't have to worry about it. We know how hard you worked for your assets and understand why it is so important to distribute your assets in the way you see fit to do it. Contact us by filling out the online form or calling us directly at (847) 635-8200 to schedule a brief, free initial phone consultation.
