Illinois Wills, Trust, and Probate

Preparing the documents that will determine the division of your property after your death can be a very emotional experience. But, it is important to recognize that drawing up a detailed and coherent estate plan is essential to protect your family and friends after your death. Your finished estate plan may be comprised of several documents, including a trust, will, advanced care directive, power of attorney, or healthcare surrogate designation, among others. Regardless of your age or the extent of your wealth, you should be sure to update your estate plan whenever life altering events occur, such as divorce, marriage, the birth of children or incompetence. Talk to an Illinois estate plan attorney, who focuses on will and trust law, about estate planning.

Illinois Will

If there are technical errors in the wording of your will, the will might not be acceptable under Illinois probate law, and your belongings may not be apportioned exactly as you wish. For your will to be acceptable in Illinois you must have:

1. Witnesses: Two or more witnesses are required to sign and attest the testator’s will in Illinois. The witnesses cannot be beneficiaries of the will.
2. Notarization: In Illinois, a will does not have to be notarized. But, if you want your will to be self-proving, you must have, in addition to two witnesses’ signatures, the signature of a notary.

For your will to be admitted to probate, the witnesses to your will must be brought before the court to attest to your signature on the will if your will is not self proving. Locating witnesses can be difficult, especially if years have passed and one or both of your witnesses has died. Consult an Illinois will lawyer if you have questions about creating or probating a will.

Changing a Will in Illinois

To alter your will in Illinois, you should:

1. Effect an amendment to the will through use of a codicil.
2. You can revoke your will by physically destroying the will, writing another will that revokes the old will, or writing another will that is inconsistent with the prior will.

Make sure that whether you revoke your will or create a new will, the resulting document is signed and attested according to Illinois probate law (i.e., proper number of witnesses, correct phrasing).

Illinois Trust

Trusts offer an adaptable and private way to give away your assets after your death. By leaving your property in trust instead of in a will, you can avoid the probate process and estate taxes. Trusts may be revocable or irrevocable. There are several kinds of trusts, including living trusts, life insurance trusts, charitable trusts, educational trusts and special needs trusts. Setting up a trust can be a confusing endeavor, and it is in your best interest to discuss your situation and your goals in setting up a trust with an Illinois estate planning lawyer.

Illinois Probate

Property that an Illinois deceased does not leave to a particular person in his will passes by intestate succession. In addition, if an Illinois deceased does not leave a will, his or her property will pass through intestate succession. Intestate succession is when Illinois law decides who gets what property from the deceased’s estate based on that person’s relationship to the deceased.

When an Illinois deceased’s assets pass by intestate succession, or when a deceased’s will is ambiguous or unclear, interested parties can petition the court to clear up the situation.

If the estate in question is worth $100,000 or less, you do not have to go through the Illinois probate process. If the estate qualifies, you should file a Small Estate Affidavit and request that your property be given to your designated beneficiary without going through the formal Illinois probate procedure.

The following people may have interests in the deceased’s property based on their relationship to the deceased:

1. Spouses
2. Children-including after born heirs, half bloods, adopted children, and out of wedlock children
3. Grandchildren
4. Parents
5. Brothers and Sisters
6. Descendants of deceased brothers or sisters
7. Adopted Persons, persons born out of wedlock

The following assets will not go through probate:

• non-probate assets – property that the deceased indicated must be given to specific individuals will not pass through probate
• contract assets –Life insurance policies, inter vivos trusts, IRAs or other assets payable to a particular beneficiary; and
• jointly held property – property held by both the deceased and other people. When the deceased dies, the property passes to the other parties immediately. Examples of joint property include bank accounts, cars, and shared houses.

Get in touch with an Illinois probate lawyer if you have any questions about the probate process, or about who may challenge the legitimacy or validity of a will.

Illinois Statutes

Illinois Statutes, Title 755 – Probate Code

1. Probate Code: General Provisions
   • Illinois Compiled Statutes, 755 ILCS 5, Art.1, §§ 1-1 et seq.
2. Probate Code: Intestate Succession
   • Illinois Compiled Statutes, 755 ILCS 5, Art.2. §§ 2-1 et seq.
3. Probate Code: Wills
   • Illinois Compiled Statutes, 755 ILCS 5, Art. 4, §§ 4-1 et seq.
4. Probate Code: Administration of Estates
   • Illinois Compiled Statues, 755 ILCS, Art. 19, §§ 19-1 et seq.
5. Illinois Trust and Payable on Death Contracts
   • Illinois Compiled Statues, 205 ILCS 625, Art, 1, §§ 1 et seq.