The thought of death or a terminal illness is uncomfortable, but putting aside drafting a simple Will may cause unnecessary hardship for your loved ones. I've created this handy Will checklist and I’ll guide you through it!
What is a Will?
A “Will” is a legal document which describes your property’s distribution after you pass. A Will must describe you, your loved ones, your assets, and how your loved ones receive your property with accuracy.
In Illinois, to give your property to loved ones after you pass, a court must validate a Will in a process known as “probate.” You can appoint someone in your Will to carry out your financial wishes known as an “executor.” Besides abiding by your financial wishes, appointment charges your executor with distributing assets under your Will to people listed in your Will. Check the link to this article for a helpful glossary.
What Happens if You Die Without a Will?
If you die without a Will (or “intestate”), then the probate court must follow the laws written by the Illinois legislature. The probate court will appoint a personal representative similar to how you would have appointed an executor if you wrote a Will.
How is Property Divided if You Die Without a Will?
If you pass without a Will, a probate court will identify and apportion your estate assets according to state laws on intestacy. Without going into too much detail regarding per stirpes and per capita by representation, which are mechanisms to pass an intestate decedent's assets to his or her heirs, know that there are several factors which could determine your probate asset distribution if you die without a Will.
Caution: It is important to note that the probate court’s formula will not take into consideration internal family dynamics and who you would have wanted to receive certain assets. If you do not have a Will, the court will use the Illinois legislature’s statutes to divide your probate assets either by per stirpes or per capita by representation. Not everyone needs a Will. However, if you have accumulated a decent amount of income during your life, as most people have, then a Will can offer you peace of mind.
That Means that Everything is Fine if I Die Intestate?
Not necessarily. While state law will govern your asset distribution, it is unlikely to reflect your family dynamics and your wishes upon death with accuracy.
Caution: In certain circumstances, your probate assets may end up in the hands of people with whom you had little to no relationship and/or the court’s hands will be tied by the legislature in distributing too much or too little assets to certain individuals. Therefore, consult a knowledgeable attorney about drafting a valid Illinois Will a probate court will recognize. A Will is not permanent, it is common for individuals to talk to us about amending a Will by making a codicil as life circumstances change.
Requirements for Executing a Will
You must be an adult (18 years or older), of sound mind, understand the nature of your bounty, and have sufficient mental capacity to understand the consequences of your actions. You must sign the Will on the last page before two or more witnesses, each of whom must see the testator (you) sign the Will and sign it in front of you and in each other’s presence. A witness who has an interest in the Will, such as a beneficiary, may sign it, but two other uninterested individuals must still sign the Will.
In Illinois, it is unnecessary to notarize a Will. A notarized affidavit to a Will in Illinois known as “self-proving.” Notarizing an affidavit to a Will can shorten the probate process by not requiring your witnesses to travel to court to testify. To make a Will self-proving, you and at least two witnesses must sign an affidavit in a notary’s presence.
1. You must be 18, of sound mind, and understand the consequences of your actions;
2. You must sign the Will on the last page before two or more witnesses;
3. Each witness must sign the Will in front of you and in each other’s presence; and
4. If one witnesses can benefit under the Will, then at least two other uninterested witnesses must also sign.
5. It is unnecessary to notarize a Will in Illinois, but notarizing an affidavit to a Will can shorten the probate process and save your estate money.
Step 1: Begin Drafting the Will
Begin writing your Will title as “the Last Will of” followed by your full legal name. The first sentence should state that you are “of sound mind and mental capacity” and that you “understand the nature of your actions and their consequences.” In the same sentence again write that “the Last Will of” and that the Will “revokes any previous written Wills and Codicils.” Remember, a Codicil is a Will amendment.
Step 2: Choose an Executor
Your executor should be someone who you trust with the financial responsibility of administering your estate once you pass. It is not a simple task and care is needed in selecting an executor who will:
1. Bring your Will to probate court for validation;
2. Act as a fiduciary to protect your estate assets from waste and mismanagement;
3. Find, organize, and distribute your assets to beneficiaries you selected;
4. Manage taxes and debts; and
5. Pay for your funeral costs with estate assets (if so chosen).
If an executor mismanages your estate, then it is possible that certain beneficiaries may receive either more or less than what you had intended. That is why choosing an executor requires careful consultation with a trusted individual. In addition, it is best practice to nominate at least one alternate executor in the event your choice for executor predeceases you, becomes incapacitated, or refuses to carry out his or her responsibilities.
Step 3: Make Two Columns—One for Heirs and One for Beneficiaries
You must identify your heirs and beneficiaries. Under Illinois intestacy law, an “heir” is an individual related to you by blood or in a close relationship to you. For example, after you pass a child and spouse stand to inherit as heirs. A person does not have an heir until they pass.
You can choose which heirs can inherit your assets. These individuals are “beneficiaries” and they may overlap with heirs or include other individuals (for example, a niece or nephew).
Your heirs might not be in the same column as your beneficiaries, and certain beneficiaries are not heirs. How does that work? Let’s say that you would like to disinherit a child, state intestacy law classifies this individual as an “heir,” but in your Will, the child will not fall under the “beneficiary” column.
In an opposite scenario, say you would like to benefit a distant, non-blood relative. This individual is not an “heir” under Illinois intestacy law, but falls into your “beneficiary” column in your Will. By crafting this language you can reduce the likelihood of confusion where an heir you disinherited, or provided fewer assets relative to other beneficiaries, contests your Will or argues for its invalidity.
In Illinois, heirs, beneficiaries, and minor children have a right to contest your Will. To mitigate the likelihood of this event occurring, you may draft a strong non-contest clause or use other instruments to ensure your Will’s validity. For that reason, we recommend you consult a Wills attorney after you have prepared your Will.
Step 4: Appoint a Guardian if You Have Minor Children or Dependents
Much like an executor, you will want to consult with an individual who will serve as your guardian for your minor children and/or dependents. A guardian will act similar to a parent, making decisions normally left to you, such as determining where your children will live and go to school.
When choosing a guardian, consider the best living routine for your child, and an individual who you know can accept the time and financial investment in raising a child.
Step 5: Review Your Property
It is overwhelming to think about all the material we possess, so take a few minutes to jot down your most valuable possessions.
After you have created a list, decide how you would like to divide your assets. You may give gifts to individual beneficiaries or to a class of beneficiaries. You should plan for contingencies such as a predeceased (i.e., a person who dies before you) beneficiary. You may still wish to provide the predeceased beneficiary’s share to their surviving children in a process known as “per stirpes.”
It is common for individuals to make mistakes when dividing assets for beneficiaries and future interests. For example, most individuals cannot determine the difference between distributions per stirpes and per capita by representation. These errors may cause an asset distribution to either fail or provide certain individuals with less or more than what you had intended. For that reason, it is important that you review your Will’s asset distribution plan with a Wills and Trusts lawyer.
Step 6: Funeral Expenses
A Will is where you can tell your family and closest relatives about your funeral wishes. It is appropriate to explain the nature and manner of your burial or cremation. If applicable, you can explain if you would like a wake and/or commemoration, explain to your family if you purchased a burial plot or would like them to use funds from your estate to purchase one, and what you would like written on your tombstone.
Step 7: Will Signing Ceremony
Sign your Will before two uninterested witnesses. Each witness must see you sign and sign in each other’s presence. As explained above, an uninterested witness is a witness that does not benefit under your Will. You may wish to shorten the probate process, and avoid unnecessary expense, by notarizing an affidavit with two witnesses it to make it “self-proving.”
Creating a Will with Syed Law
We hope this guide has helped in answering some of your questions about drafting a Will. Your Will is a document with immense legal implications for your loved ones. If you create a Will, know that you can amend it if family dynamics and life circumstances change.
The thought of death can delay Will execution, however a Will can ensure that you provide for your loved ones after death by reflecting your testamentary wishes. Let Syed Law help you achieve peace of mind by assisting you in drafting a Will. We’re here to listen to your needs and will tailor your Will to your wishes.
Contact us today for a worry-free complementary consultation.
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