Estate Planning | Living Wills | Guardianship | Power of Attorney

Illinois Has Formal Requirements for a Will

A will is a document that controls the distribution of a person’s property at death. Each state has formal requirements for a will. In Illinois, the requirements are as follows:

  • The maker of a will must be 18 years old and be of sound mind and memory.
  • The will must be in writing.
  • The will must be signed by the maker and must be witnessed in the special manner provided by law. Two witnesses are required in Illinois (persons who are beneficiaries under the will cannot serve as witnesses).
  • After death, the will is presented in court and, after being proven valid, is put into effect and its provisions are carried out.
  • A will may be revoked or changed at any time before the death of the maker. To be effective, changes must be made strictly in accordance with legal requirements. A change in a will is often made by an addition called a “codicil.”

Among important considerations when making or reviewing a will are the following:

  • Who should receive your property, and, if you have children who will inherit the property, at what age?
  • Who should be named as guardians of minor children, and what are their duties?
  • Should a trust be created for your spouse, children or others?
  • If a trust is created you must name a competent individual or trust company to manage the trust.
  • Should charitable gifts be made?
  • Should life insurance proceeds be payable to a trustee or executor named in your will or to individuals directly?
  • Who should be named executor?
  • Can taxes be saved?
  • Has your marital status changed since you made your last will?
  • Have any beneficiaries of your estate died or have you had important changes in circumstances or assets?

Generally, a person may give away his or her money in any way in a will. However, Illinois law does not allow one spouse to disinherit the other without the consent of the one who is disinherited. A surviving spouse, whether or not named in the will, may renounce the will and receive a third of the deceased spouse’s estate if there are surviving descendants of the deceased or one half if there are no surviving descendants. A spouse may renounce a will for any reason.

Although Illinois law establishes the right to make a will, it is not compulsory. If there is no will, the court distributes the property to the legal heirs of the deceased according to law.

Just how the property will be distributed depends on the circumstances of each situation. For example, if there is a spouse and one or more children, the spouse gets half and the children get half. In all cases, the law is rigid and makes no exception for those in unusual need or other circumstances.

Note: This information was prepared as a public service by the Illinois State Bar Association. Every effort has been made to provide accurate information at the time of publication. For the most current information, please consult your lawyer. If you need a lawyer and do not have one, visit our lawyer referral page.

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