What is a Last Will and Testament in Illinois?

In estate planning in Illinois, a Last Will and Testament is a legal document which allows you to name a person (an Executor) to represent your estate upon your death, and gives directions for the distribution of your property upon your death.  In order to make a valid Will (not to be confused with a Living Will) in Illinois, you must be of sound mind, and your Will document must be properly signed and witnessed.

What can a Will do in Illinois?

A Will is a very important document that should be a part of anyone’s estate plan because of its many benefits.  Specifically, a Will can do the following:

• Make specific gifts (called bequests) upon death
• Make general distributions of the remainder of your estate upon death
• Name a person to serve as the representative (your Executor) of your estate
• Outline the specific powers you want to give your Executor to administer your estate upon death
• Name a guardian of your minor children upon your death
• Waive the necessity of a surety bond for your Executor (which is usually a needless expense for estates costing literally hundreds, or even thousands, of dollars)

Who needs a Will in Illinois?

Simply put, everyone in Illinois could benefit from having a Will.  A Will is your chance to direct how you want your estate to be handled when you die, and just as important, who you want handling your estate when you die. 

If you fail to make a valid Will in your lifetime, you might be troubled to find out that the Illinois legislature has made one for you.  And many of the provisions they have set out for you likely will not be what you want.

What happens if you die without a Will in Illinois?

If you die without a Will in Illinois, your estate (your property) will be distributed according to the Illinois laws of Intestacy (a fancy term for dying without a valid Will).  According to Illinois law, your estate will be divided one-half (1/2) to your surviving spouse and one-half (1/2) to your children.  If you have minor children, this adds the further complication of needing separate court guardianships for each of your minor children to receive his/her share of your estate.  In order to avoid these (and many other) kinds of complications which come from not having a valid Will in Illinois, it is important to have a Will as part of your estate plan. 

Wills and Executors

Who should I name as the Executor of my Will in Illinois?

One of the most important decisions you will make in your estate planning is who to name as the Executor of your Will.  To help you in deciding who you should name, here is a list of factors to consider for your Executor:

• Does your named Executor have the skills and savvy to manage an estate distribution?
• Is your named Executor available to handle your estate upon your death?
• Is your named Executor a trustworthy person, especially in handling large sums of money?
• Will your Executor be able to work well with your beneficiaries to resolve any possible disputes or issues that may arise after your death?

By considering these factors, you should be able to have a better idea about who would be an appropriate choice to name as the Executor of your Will.  And by choosing the right person, your estate administration will be handled much more effectively and efficiently upon your death.

What powers does an Executor have under an Illinois Will?

Generally, your Executor has broad powers to properly administer your estate upon your death.  The powers (which you can list in your Will) your Executor would have during the estate administration would include:

• To liquidate your assets (such as by selling your real estate)
• To manage your financial assets until they are properly distributed
• To properly settle all claims related to your estate
• To hire legal and financial professionals to aid in the administration of your estate
• To make proper distributions of your entire estate according to the directions under your Will

By not having a Will, the person appointed to be the representative of your estate (the Administrator) would need to look to the Illinois Probate Act to determine the specific powers that he/she would have in the estate administration.

Wills and Minor Children

How can a Will protect your minor children in Illinois?

One of the biggest concerns for many people if they were to die today is how their minor children would be cared for upon their death.  If you are a parent with minor children, it is important to consider having a valid Will as part of your estate plan.  By making a Will, you will be able to name a guardian (and even a successor guardian, if your first choice is unavailable to serve) to care for your minor children upon your death.  Without a Will, a disconnected judge in the probate court of your local county will make that decision for you.  Only by making a Will would you ultimately be able to direct this process after you die. 

Also, if you are married, you can ensure that all of your property passes according to your wishes upon your death by making a Will.  Without a Will, it is possible that only half of your property would pass to your surviving spouse, and the other half to your minor children (which is the distribution process under Illinois law for married couples without a Will).  If property were to pass to your minor children, separate court guardianships would be necessary for each of your minor children upon your death. 

Who should I name as Guardian for my Minor Children in a Will in Illinois?

If you have Minor children, it is important to think about what would happen to them in the event of your untimely death.  One way to address this issue effectively is to make a Will, naming an appropriate person to serve as their Guardian.  This, of course, raises the question:  What should I look for in naming a Guardian for my Minor children?  Here is a list of factors to consider:

• Is the person trustworthy?
• Is the person willing and available to take on this responsibility?
• Does this person have the financial means to support your children?
• Does this person share your faith and family values?
• Will this person be able to provide the level of ongoing care and parenting each of your children need?

By considering these factors, you will have a better sense about who you should name in your Will to be the Guardian of your Minor children in the event of your passing.

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