With important exceptions, a Will is a document that controls the disposition of a person’s property at death. In Illinois:
• 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 by 2 witnesses in the special manner provided by law. Persons who are beneficiaries under the Will should not 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 death so long as the maker is legally competent. Changing a will also requires 2 witnesses.
WHAT ARE SOME IMPORTANT CONSIDERATIONS IN MAKING OR REVIEWING A WILL?
Who should receive your property,
and, if children, 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 sav
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 can give his or her property to anyone. However, Illinois law does not allow one spouse to disinherit the other spouse without the consent of the disinherited spouse. If a Will disinherits a spouse, the surviving spouse can renounce the Will and receive a percentage of the deceased spouse’s estate. A surviving spouse can receive one half (1/2) of the estate if there are no surviving descendants or one third (1/3) of the estate if there are surviving descendants.
In general, a person’s right to renounce the Will of his or her spouse does not extend to a “living trust” created by the spouse prior to death.
WHAT PROPERTY DOES A WILL NOT GENERALLY CONTROL?
A Will generally does not control the disposition of the following properties:
• Property held in joint tenancy
• Property payable to a designated beneficiary
• Property held in trust
DOES A WILL MAKE FOR MORE COURT EXPENSE?
No. In fact, a Will can save expense by eliminating the need for sureties on bonds, expediting the sale of property, avoiding guardianship for minors where not really necessary, and otherwise providing the executor of the Will with clear directions on handling of the estate.
If there is no Will the court appoints an administrator to settle the estate and make distributions as provided by law, after all debts and expenses have been paid.
An individual without a Will has no voice in the selection of the administrator. If there is a Will, the executor nominated by the maker of the Will takes the place of an administrator and is the one who handles the estate. A person making the Will may nominate as executor any individual in whom he or she has confidence provided the executor meets statutory requirements. A bank or trust company also may be named as executor.
Illinois has adopted Independent Administration for estates of all sizes. This is a relatively simple process that allows for increased family privacy and less court appearances.
WHY WRITE A WILL?
A Will allows a person to state to whom his or her property will be transferred after his or her death. But if there is no Will, the property is transferred to one’s heirs pursuant to the state statute. For example, if there is a surviving spouse and one or more children, the surviving spouse gets half and the children share equally in the other half. A Will lets you give your property to the people whom you chose. Without a Will, the state statute gives your property to your heirs at law even if that is not what you would have wanted.
A Will allows you to choose how to distribute your estate. A Will can help you reach your estate planning goals. In some instances, a Will can help reduce or eliminate estate tax.
A Will lets you name your executor. The executor is the court appointed person to be in charge of your estate.
A Will also allows you the opportunity to nominate the individual or individuals whom you would like the court to appoint as guardian of your children.
DOES A GOOD LIFE INSURANCE
PROGRAM TAKE THE PLACE OF A WILL?
No. Life insurance is one kind of property you can own. Life insurance trusts are popular devices to provide money at your death without adding to your taxable estate. Another way of planning for use of insurance proceeds is by creating a trust in your Will. The insurance is then made payable to the trustee named in the Will. The designation of life insurance beneficiaries may affect the creditors of a decedent as well as the decedent’s taxes, all of which should be considered when making an estate plan.
PUTTING OFF MAKING A WILL
A Will should be prepared while a person is in good health and in a position to carefully consider its provisions. Putting off making a Will can have disastrous results when you do not want your property distributed to your heirs as set out in the state statute.
Lageotakes Law Firm
Thomas Lageotakes, Attorney & CPA
1699 E Woodfield Rd Suite 400
Schaumburg, IL 60173
111 E Jefferson Ave
Naperville, IL 60540
Chicago office by appointment only: Coming soon
15974 TRESTLE DR
WESTFIELD, IN, 46074
Phone: 224 324-4400
Phone: 630 753-8035 630 753-8035
From our office in Schaumburg and Naperville, Illinois, we handle matters in areas of DuPage County, Cook county, Will County, and Kane County including Aurora, Barrington, Bartlett, Carol Stream, Hoffman Estates, Naperville, Oak Brook, Roselle, Schaumburg and Streamwood.
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