For many people, the topic of death and dying is a taboo subject that is rarely discussed. Although talking about death can make people uncomfortable, the fact of the matter is that no one lives forever. Estate planning isn't just for seniors; planning what happens to your assets after you pass is a responsible decision that will take a lot of the guesswork out of your family's hands.
Illinois Intestate Laws
A person who dies without a will is said to have died "intestate." As a will is not present to dictate how asserts are to be divided following the individual's death, the court follows intestacy laws to determine which surviving family members are entitled to receive a share of the decedent's estate.
While intestacy laws provide a way for assets to be divided if a person dies without a will, there are many downsides to this process. For example, if you pass away intestate:
- Your surviving family members may not be able to receive their share of your assets for a long time;
- You will not have any say over who receives specific items, as the court has no way of knowing that you wanted your niece to have your wedding ring;
- Everyone who is entitled to property will receive an equal share, even if you wanted one child to receive more than his siblings;
- Multiple family members may wish to be named as personal representative, resulting in family disputes;
- If you have a partner but are not married, your partner will not be entitled to any portion of your estate; and
- If you leave behind minor children who are entitled to a share of your estate, a guardian will have to be appointed to represent the children's interests.
So long as a person is 18 years or older and of sound mind, he or she may create a will in Illinois. A person who creates a will is called a Testator.
Elements of a Valid Will
In order to be considered valid in Illinois, a will must conform to the following requirements:
- In writing (handwritten wills are valid as long as they are properly witnessed);
- Testator's signature at the end of the document (or the testator's name signed by someone else if the testator is physically unable to sign);
- Two witnesses who are not beneficiaries, who sign the testator's will both in the presence of the testator and in the presence of each other.
Codicils to a Will
Frequently, a person who creates a will wishes to make a change to the will without creating a whole new document. In this case, an amendment called a "codicil" can be created, which alters the will to the testator's specifications. Codicils are valid in Illinois, so long as they are executed under the same conditions and requirements as a will.
While valid in some states, the following forms of wills are not recognized in Illinois.
- Holographic wills: these forms of wills are handwritten and are not signed in the presence of a witness. Whereas some states will recognize these wills, Illinois will not deem a handwritten will valid unless it was signed in the presence of two disinterested witnesses or was created in a state that does not have a requirement of witness signatures.
- Oral wills: while some states recognize oral wills as long as they are verbally stated in the presence of witnesses, Illinois does not recognize a verbal will.
Illinois Living Trusts
A living trust can essentially be thought of as a will with a middle man; unlike a will, a trust appoints a trustee, who manages property for the benefit of someone else. The person who creates a living trust is called a grantor, and the person or persons who benefit from the trust are called the beneficiaries.
Trusts are created through a trust document that states the parties to the trust, the property that is held in the trust, and how the property should be disbursed at the grantor's death. Two forms of living trusts exist in Illinois:
- Revocable living trusts, where the grantor can change the terms and property in the trust whenever he or she pleases; and
- Irrevocable living trusts, where the grantor has no power to change the trust once created.
A major benefit of a trust is that trusts are not subject to the probate process, meaning the court does not get involved in any way. Following a grantor's death, a trustee distributes trust property according to the grantor's wishes.
Family Law and Estate Planning
Changes in your family structure don't just have a profound impact on your life; they can also impact your estate after your death. It's important to understand the implications of these changes and how they can affect your final wishes.
If you are married but do not include your spouse in your will, your spouse can petition to inherit from your estate following your death. This right is called the "elective share." If you were survived by children, the elective share that your spouse can receive is one-third of your estate; if you died without children, your spouse can receive one half of your estate.
If you divorce your spouse, his or her rights to a share of your estate are eliminated, even if your ex-spouse is in your will at the time of your death.
Adoptive children may inherit from their adoptive parents, but not their birth parents. If you adopt a child and pass away without a will, for example, your adopted child will receive a portion of your estate just as your biological children do.
Becoming a Step-Parent
If you legally adopt your step-child and pass away without a will, your step-child will inherit from your estate just as your other children would inherit. You can also name your step-child in your will so that he or she can inherit from your will when you pass away.
Planning for Your Future? We're Here to Help
Planning ahead for what happens after you are gone is one of the kindest decisions you can make for your family members. If you are a resident of Illinois and are ready to take the next step in planning your estate, the team of attorneys at Dolci & Weiland are standing by to help ensure that your legal documents match your final wishes. To make an appointment to speak to a member of our legal team about your plan for the future, fill out an online contact form or call the office closest to you today. For our DuPage location, call (630) 261-9098, or for our Chicago office, call (312) 238-9007.