Do I need an attorney to make a Will in Illinois?

One common set of questions that arises frequently in Illinois estate planning is:  “Do I need an attorney to help me with the drafting of my Illinois Will?  I thought that drafting a Will is pretty easy.  Isn’t this something that I can do on my own?”  In order to answer these questions, let’s examine a few common mistakes that are routinely made in the drafting of Illinois Wills.

1.  Naming inappropriate Executors and/or Guardians for Minor Children.

When an individual (the Testator) decides to make a Will, one of the most important decisions he/she will make is who to name as the Executor of the Will.  If the Testator does not have a good understanding of the role of an Executor in Illinois, it would be easy for him/her to make a poor choice in naming an individual to serve in this capacity.

Also, if the Testator has Minor children, who he/she appoints as the Guardian for the Minor children should something happen to him/her is potentially an even more important decision than the naming of an Executor.  Again, if the Testator does not understand the role of the Guardian and the overall guardianship process, it might be difficult to make a wise decision about who to name for this role.

2.  Failing to review/understand the standard provisions in form Wills.

Many individuals happily sign complex form Will documents each year without understanding whether the form provisions express their actual wishes or not.  Because Wills are legal documents, they oftentimes contain complicated language that is difficult for the average lay person to understand.  Ultimately, if the Will that is signed does not actually reflect the wishes of the Testator, the mistake will likely not be found out until after the Testator dies, and the Will is admitted to probate.  At this point, it would be very difficult to unwind any damage done.

3.  Failing to properly execute (sign/witness) the Will.

One of the biggest mistakes individuals make in drafting and completing a Will in Illinois is the execution of the Will.  In Illinois, as in many states, the procedures for the signing and witnessing of a Will are very formal, strict, and unforgiving.  If the Will execution requirements are not precisely met, the Will is technically invalid.  To give an idea regarding how the execution of a Will can be challenged in an Illinois Probate Court after the Testator has died, consider this list of questions for the witnesses of the Will prepared for a procedure called a “Formal Proof of Will” hearing:

• Look at the document purported to be the last will and testament of the decedent.  Does it appear to be in the same condition as at the time of signing?
• Who asked you to sign this document as a witness?
• For what purpose did you witness this document?
• Did you see the decedent sign his/her name to this document?
• Did the decedent see you sign your name as a witness?
• Who was present at the time of signing?
• When was the document signed?  Specifically, what time of day was it when you signed the document?
• Where did the signing take place?
• Did you believe the decedent to be of sound mind and memory at the time of signing?
• Describe the decedent’s general appearance at the time of signing.
• Who signed the document first--you or the decedent?
• Did you see the other witness(es) sign the document?

Thus, it is fairly obvious that Will executions can be examined and challenged in minute detail.  It is therefore advisable to use caution in the execution of an Illinois Will.

4.  Failing to regularly update the Will over time.

Finally, many individuals simply fail to update their Wills over time.  Oftentimes, individuals get divorced, acquire property in other states/countries, enter into complex business arrangements, etc., yet fail to review and update their estate plans throughout their lives.  As it is sometimes stated by estate planning attorneys in Illinois, an old Will can be worse than no Will at all.  Thus, Wills (and other estate-planning documents) should be regularly updated.

So, is an attorney necessary to make a Will in Illinois?

Technically, an individual can draft his/her own Will in Illinois.  But is this advisable?  Given the various ways that Wills can be improperly drafted and executed, it is normally wisest to work with an experienced lawyer in the drafting and execution process.  An experienced Illinois attorney can provide guidance in properly naming individuals for Executors/Guardians, explaining complex provisions in the Will to ensure that the provisions in fact reflect your wishes, ensuring the proper execution of the Will, and serving to remind individuals over time when a Will should be updated.

The Law Office of Kevin Williams, 2295 Bannister Lane, Aurora, IL 60504, (630) 898-4789