Making a Will can be a daunting task. You know it’s important to plan for what will happen to your property, dependents and remains when you die, yet something holds you back.
“I want to plan; I just don’t know if I can make these decisions right now…” This sentiment is something our Chicago-based attorneys hear all the time.
Rest assured — with the right education and preparation — you can create a Will that will give you peace of mind and leave your estate in good hands. Read on to learn how to make a Will and the considerations you’ll have to make in the process.
What Is a Will?
A Will is a legal document that directs the distribution of your assets when you die. To transfer the assets listed in your Will to other people, a court of law must first validate the Will through a process called probate.
A Will allows you to appoint an executor and (in Illinois) a guardian over your minor children. The executor carries out the financial wishes stated in your Will. A guardian is someone you name to take care of your minor children after you die.
As you go through this planning guide, it will be helpful to know some Will-related jargon. Here are a few definitions to keep in mind:
- Testator: The person making a Will in preparation for their dying (you!)
- Codicil: A Will amendment
- Probate: The process of proving and accepting a Will as a valid public document in a court of law
- Probate Assets: Any property individually owned by the testator
- Decedent: A person who has died
- Legatee: A beneficiary to whom a testator leaves assets in a Will
- Bequest: A gift given to a legatee
- Intestate Heirs: The persons who receive your probate assets when you die without a Will.
- Notary: A person licensed by the state government to authenticate signatures on legal documents
What Happens If You Die Without a Will in Illinois?
If you die without a Will in Illinois, the court names the personal representative of your estate, who generally has the same duties as an executor who is named in a Will. The court also decides how to distribute your probate assets in accordance with the state laws of intestacy and, if you have living minor children or dependents, appoint a guardian for you.
When a judge distributes your assets at the time of your death, the court does not dive into the dynamics of your family history or try to decipher who you would have wanted to receive bequests. The court just divides your assets according to your will, if you have one, or among your closest living relatives, if you don’t have a will.
among your closest living relatives, purely by formula.
Without a Will, the future of your probate assets and living dependents lies in the court’s hands, which are tied to court statutes.
How a Court Awards Property in Illinois If You Don’t Have a Will
If you don’t have a Will when you die in Illinois, half of your estate goes to your spouse, and half is divided equally among your descendants.
If your spouse is no longer living, the court distributes your estate among your descendants. If you don’t have descendants, your entire estate will go to your spouse.
What if you don’t have a spouse or any living descendants? The court will divide your assets among other relatives starting with your parents and siblings.
No parents or siblings? As you might guess, Illinois intestacy laws on descent and distribution outline a laundry list of relatives to whom your estate will go, including relatives with whom you may have no relationship.
The way to prevent a judge from deciding the fate of your hard-earned probate assets is to create a Will.
What Are the Legal Requirements of an Illinois Will?
To create a legally valid Will in Illinois, you must be at least 18 years old and of sound mind and memory. This means you must be able to understand:
- The assets you own individually and who you want to gift it to after you die
- That the purpose of a Will is to dispense your assets when you die, nominate a trusted executor to carry this task out and, if you have minor children, appoint a guardian
An Illinois Will must be in writing, contain your signature and the signatures of two credible witnesses.
State law doesn’t require Illinois Wills to be notarized. However, the only way to ensure a shortened probate process and prevent your witnesses from possibly having to testify in court during probate is to make your Will “self-proving.” To do this, you and your witnesses must sign an affidavit in the presence of a notary.
How to Make a Will
The components of a Will are straightforward. Generally, you must:
- Write an Introduction
- Select an Executor
- Identify Your Heirs and Beneficiaries
- Nominate a Guardian for Your Minor or Dependent Children
- Assess and Divide Your Property
- State Your Funeral Wishes (If You Have Any)
- Sign and Notarize the Document
While completing these seven steps may sound simple, it can be difficult to do without professional legal advice. You must make decisions that will affect your loved ones long after you’re gone and also plan for contingencies.
Here are the seven essential components to place in your Will.
1. Write an Introduction
The title of your Will should be, “The Last Will of” and include your full name.
In the first sentence of the Will, state your full name and declare that you are of sound mind and memory. You will also restate that this is your “last Will and testament” and that it revokes any previously made Wills and Codicils.
2. Select an Executor
After you establish your identity and make it clear that this document is a Will containing your last wishes, select an executor.
Carrying out the wishes of your Will and making sure your estate is in order is a big responsibility. Your executor must be someone that you trust.
Your executor has several responsibilities related to your estate. The executor must:
- Present your Will for probate in probate court
- Protect the assets of your estate from mismanagement
- Locate, manage and award your assets to your beneficiaries
- Pay the debts and taxes of your estate
- Arrange your funeral using the estate funds
Before you select an executor, be aware that if the executor mismanages your estate and your beneficiaries receive less than they otherwise would have received had the executor done the job correctly, the executor may be held personally liable.
The executor’s duty is a major responsibility, so ask permission before naming someone in that role and discuss with that person what the job will entail. We recommend that you appoint one or two alternate executors should your first choice be unable or decline to do the job.
3. Identify Your Heirs and Beneficiaries
Your Will must identify your beneficiaries. Your heirs are the blood relatives in line to receive a portion of your estate by state intestacy laws, but they do not have to be your legatees. In the state of Illinois, your spouse is always an intestate heir.
Your beneficiaries are the people who will receive your probate estate. Your heirs may not be the people you choose as beneficiaries, so it’s critical to clarify this in your Will. By naming people in both these categories, you’ll help your executor ensure that your assets go to the right people. Otherwise, an heir whom you intend to disinherit may assert that you simply forgot to mention the person in the Will.
Please note that your heirs, beneficiaries and minor dependents have a legal right to contest your Will or argue its validity. To make sure your Will accounts for this possibility, or if you want to disinherit someone from your will, we recommend seeking the help of an attorney. Non-contest clauses and other measures can be taken to help prevent your Will from being attacked by a beneficiary or an heir who is not a beneficiary (or receives a lesser amount than other beneficiaries).
4. Nominate a Guardian for Your Minor or Dependent Children
In Illinois, you may also nominate a guardian to take care of your minor or dependent children within your Will. Choosing a guardian may be the most significant decision you will make in the Will creation process. If you die, the guardian of your children will decide where your children live and go to school and other decisions that you, as a parent, make.
When selecting a guardian for your Will, ask yourself four questions:
- Who will impart the best value system?
- Who will your children feel most comfortable living with?
- What living arrangements will be least disruptive to your child’s routine after your death?
- Who is best suited for the physical and financial rigors of raising your children?
Just like the executorship, you may want to name one or two alternate guardians if your first choice is unable or unwilling to perform the duty when the time comes. Always discuss guardianship with the people you name prior to signing your Will.
5. Assess and Divide Your Property
A section of your Will must assess and divide your property among your beneficiaries. Depending on the terms of your Will, you may need to list categories of assets you own individually, including:
- Real estate
- Bank accounts
- Retirement accounts
- Tangible assets
After you have outlined the assets that make up your estate, your Will directs percentages or specific cash or other gifts to your beneficiaries. You can give tangible bequests like jewelry or precious heirlooms. If you would like to leave gifts to classes of people instead of naming them individually, you may do so, using correct legal terminology.
Include contingency plans if one or more of your beneficiaries are unable to receive your estate. Gifts to people made per stirpes, a term very common in Wills means (in Latin) that if the person does not survive you, that person’s share of the estate will be distributed to the predeceased beneficiary’s descendants.
6. State Your Funeral Wishes (If You Have Any)
Your Will is also the document where you may articulate your funeral wishes.
You can include instructions on how you want the funeral home and your loved ones to care for your remains. Clarify whether you want to be buried or cremated and include directions for the disposal of your remains if necessary.
You may also outline how you wish to be commemorated. If you want a funeral, memorial service or another ceremony, state this in your Will and include instructions about what you would like to take place at the event.
When you do not clarify your wishes in this regard, your family will have the responsibility of making these personal decisions for you, so if you have a preference, a Will is where you give such direction.
7. Sign and Notarize the Document
Once you’ve completed your Will, you must sign it in the presence of two appropriate adult witnesses of sound mind and memory, and though it is not strictly required in all states, best practice includes a self-proving affidavit that is also notarized.
When you complete your Will, know that it can be amended any time before your death by following proper legal procedure. In most instances, if you create another Will at a future date, it will revoke any older Wills in existence.
Creating Your Will With Matlin Law Group
We hope that this Will planning guide has helped you understand what it takes to write a Will. If you want to learn more about the estate planning or Will creation process, feel free to reach out or check out our legal resources for more information.
Always keep in mind that your Will is going to have a lasting effect on your loved ones long after you’re gone. Although it’s possible to create a Will on your own without any legal assistance, we recommend hiring a trained attorney to help with the process.
Our attorneys are compassionate professionals with over 50 years of collective Will creation and estate planning experience. We know how to assess your family dynamics and create estate plans that preserve your best interests. We also represent executors, other personal representatives and beneficiaries.Sign Up for Our Newsletter