A will gives you the opportunity to make important decisions about what happens to your property after your death rather than leaving those decisions entirely to Illinois law. It can identify the people or organizations you want to receive property, nominate the person you want to administer your estate, and help provide clear instructions for your family.
Creating a will, however, involves more than deciding who gets what. The document must comply with Illinois law, coordinate with the way your assets are owned, and fit within your broader estate plan.
Keller Legal Services assists individuals and families in Naperville, DuPage County, Kane County, Will County, and surrounding Illinois communities with preparing and updating wills. A properly considered will can provide direction for the future while reducing uncertainty about your intentions.
A will is a legal document that directs how property subject to the will should be handled after death.
Depending on your circumstances, a will can be used to:
A will is often an important component of a larger estate plan, but it is important to understand what the document can and cannot control.
Not every asset passes according to a will. Beneficiary designations, joint ownership arrangements, trusts, and other transfer mechanisms may determine what happens to particular property regardless of what the will says.
Illinois law establishes basic requirements concerning who has the legal capacity to make a will.
Under 755 ILCS 5/4-1, a person who has attained the age of 18 and is “of sound mind and memory” has the power to dispose of real and personal property by will.
The capacity requirement matters because a will is intended to reflect the decisions of the person making it, known as the testator. Questions about capacity can become particularly significant when a will is prepared or changed later in life, during serious illness, or under circumstances that may eventually lead family members to question its validity.
Planning while your intentions and decision-making ability are clear can help create a better record of what you wanted to accomplish.
Writing down your wishes does not necessarily create a legally valid Illinois will.
Under 755 ILCS 5/4-3, a will generally must:
Illinois law also recognizes qualifying international wills.
Execution requirements are important because problems with signing or witnessing can create issues when the will is later presented for probate. Illinois also has separate statutory provisions concerning electronic wills and remote witnessing, but using those procedures requires attention to their specific requirements.
A will should not be treated like an informal document that can simply be signed whenever convenient without considering the legal formalities.
One of the most common misunderstandings about wills is that they automatically determine what happens to everything a person owns.
Generally, a will governs property that becomes part of the probate estate and is subject to the terms of the will. Other property may transfer independently.
For example, the will may not control an asset that passes through:
Consider someone whose will leaves the estate equally to two children but whose financial account names only one child as the account’s beneficiary. The will alone may not override the beneficiary designation.
That is why preparing a will should involve looking beyond the document itself. Asset ownership and beneficiary designations should be considered alongside the instructions contained in the will.
Your will can nominate the person you want to serve as executor of your estate.
The executor’s role begins after death and, when probate is required, generally involves obtaining the legal authority necessary to administer the estate. Responsibilities can include identifying estate assets, handling creditor matters, maintaining records, addressing expenses and taxes, distributing property, and completing the administration process.
The person you nominate should therefore be someone you trust to handle financial and administrative responsibilities.
Factors worth considering include whether the person is:
It is also useful to consider an alternate executor in case your first choice dies before you, becomes unable to serve, or simply does not want the responsibility when the time comes.
Families who ultimately need to administer an estate can find a broader explanation of the process on Keller Legal Services’ Illinois probate page.
For many people, the most important part of creating a will is determining who should inherit.
A will can provide for a spouse, children, other relatives, friends, charities, or other intended beneficiaries, subject to applicable Illinois law. You can also decide whether particular property should go to a specific beneficiary or whether beneficiaries should receive shares of the remaining estate.
Those decisions deserve more thought than simply creating a list of names.
Questions may include:
Clear planning for contingencies can become especially important when family circumstances are complicated or when a beneficiary’s situation may require more than an outright distribution.
A will and a trust are not interchangeable.
A will generally provides instructions concerning probate property after death. A trust can hold and manage property according to its terms and may operate during the person creating the trust’s lifetime as well as after death.
That does not mean everyone needs a trust or that having a trust makes a will unnecessary. The appropriate structure depends on the person’s assets and planning objectives.
For some families, a will may form the central component of the estate plan. Others may use a will together with one or more trusts as part of their planning.
The important question is not which document is “better.” It is what combination of documents and ownership arrangements accomplishes what you actually want.
A will becomes relevant after death. It does not give another person authority to manage your financial or medical decisions merely because you become unable to make those decisions yourself.
That distinction is easy to overlook.
An estate plan should consider what happens if you are alive but unable to handle important matters because of illness, injury, or diminished capacity. Powers of attorney can provide authority for another person to act in designated circumstances, while advance health care planning can address medical decision-making and related wishes.
These documents perform different jobs. Having a well-drafted will does not eliminate the need to consider lifetime planning.
When someone dies without a valid will, that person is considered to have died intestate.
Illinois law then determines who inherits probate property according to the statutory rules of descent and distribution. The result depends on which relatives survive the deceased person.
This does not mean that the State of Illinois automatically receives someone’s property simply because there is no will. Rather, state law supplies the distribution plan that the deceased person did not create.
The practical issue is one of choice. The statutory distribution may or may not resemble what you would have selected yourself.
Without a will, there is also no will-based nomination of the person you would prefer to serve as executor.
A will should reflect your life as it exists now, not necessarily the circumstances that existed when you signed the document years ago.
You may want to revisit your will following changes involving:
Even without a major event, periodically reviewing an older will can reveal outdated names, provisions, or assumptions.
Updating a will also needs to be done properly. Informally writing on an existing document, crossing out language, or making handwritten changes can create uncertainty rather than accomplishing the intended revision.
After a will is properly executed, the original should be kept somewhere reasonably secure but accessible when it is eventually needed.
The people closest to you do not necessarily need to know every provision of your will. It is useful, however, for the appropriate person to know that a will exists and how the original can be located.
A carefully prepared document provides little practical help if no one can find it after death.
You should also avoid placing the original somewhere that may become inaccessible to the person responsible for handling your affairs without first considering how access will work.
No. A will does not itself avoid probate. It provides instructions for property governed by the will and can nominate an executor. Whether probate is necessary depends largely on the nature, value, and ownership of the assets involved.
Illinois law establishes requirements for making and executing a valid will. The larger concern with preparing a will without legal guidance is not simply producing a document, but making sure it complies with Illinois law and actually coordinates with your property and intended estate plan.
Yes, a will can generally be changed while the testator has the legal capacity to do so. Depending on the extent of the changes, that may involve a properly executed codicil or preparing a new will. Changes should be made with the same attention to legal formalities as the original document.
Being named in a will does not by itself give the nominated executor unrestricted authority over probate property immediately upon death. When probate administration is necessary, the will generally must be admitted to probate and the representative appointed through the appropriate process.
A will may eventually be read and applied at a time when you are no longer available to explain what you meant. Clear planning now can reduce uncertainty about your property, your beneficiaries, and the person you want responsible for administering your estate.
Keller Legal Services helps individuals and families in Naperville, DuPage County, Kane County, Will County, and surrounding Illinois communities prepare wills that fit within their broader estate planning goals.
If you are creating your first will, replacing an outdated document, or reconsidering how you want your property handled, call 630-505-1515 to schedule a free consultation with Keller Legal Services.
