Frequently Asked Questions

What is a Will?

A Will (also known as a “Last Will and Testament”) is a written declaration of a person’s intentions as to the disposition of his or her property taking effect at death. The primary purpose of this document is to establish a structure to govern and distribute probate assets. Typically, probate assets are property that are titled in one’s name at death, and which do not have a beneficiary designation (such as a life insurance policy or IRA). A Will typically contains provisions for who should administer the probate assets upon death and how those assets should be divided and distributed. Traditionally, the Will was the cornerstone of the estate plan. However, in the Midwest, the Revocable Trust has replaced the Will as the primary means of transferring assets at death (although a Will is still a very useful document).

A Will is revocable and amendable during life. A Will has no legal effect during one’s lifetime and only becomes enforceable at death. It is also the primary document that allows a parent to elect a guardian for any minor children in the event that both parents are deceased or disabled or disabled. The parties involved in a Will are:

  • Testator
    The individual that creates the Will.
  • Executor or Personal Representative
    The individual(s) and/or corporation(s) empowered to administer the estate. The Executor collects and inventories probate assets, pays debts, taxes, funeral costs and other eligible expenses, handles claims and disputes, and ultimately distributes the probate assets in accordance with the provisions set forth in the Will. The actual duties of the Executor vary according to the complexity and scope of the estate assets and the written plan.
  • Legatee
    An individual and/or entity receiving cash or liquid assets under the terms of a Will.
  • Devisee
    An individual and/or entity receiving real estate under the terms of a Will.
  • Guardian of the Person and Estate of Minor Children
    The Guardian of the Person is an individual(s) responsible for the care, custody and upbringing of a minor child. The Guardian of the Estate is an individual(s) or corporation(s) responsible for the financial affairs of a minor child. Once a child reaches the age of majority (18 in Illinois), then the Guardians no longer have authority to make decisions on behalf of the child and that child will receive full control over his or her property, unless provisions of the Will state otherwise. The Guardian of the Person and Estate are often the same individual(s), but this is not required.

Types of Wills

There are three principal types of Wills that may be created:

Outright Will

This type of Will provides for probate assets to be distributed outright to the legatees and devisees at death. In Illinois, if the aggregate value of the probate assets exceeds $100,000 or if there is any real estate, then a probate proceeding must be initiated in the Circuit Court (the Probate Court). If assets are distributed to a minor child, then a guardianship estate in probate court may also be necessary. The probate court in a guardianship court will give substantial weight to the guardians named in the Will, but is not required to nominate those individual(s) if the court feels that it is not in the best interests of the minor child.

Will with Testamentary Trust

This type of Will may be used when one wants to leave probate assets in trust at death, but does not set up a Revocable Trust. This type of will is no longer as popular as several decades ago. With the additional flexibility available with a Will and Revocable Trust together, we generally do not advise clients to use this type of Will, given the relative costs. A Will with Testamentary Trust(s) is again generally subject to proceedings in probate court if the assets are in excess of $100,000 or there is real estate. However, if probate assets are distributed to a testamentary trust for the benefit of minor children, then a guardianship estate may be avoided.

Pour-Over Will

This type of Will is used in conjunction with a Revocable Trust. If the Revocable Trust is properly funded, then a proceeding in probate and/or guardianship court may be avoided. However, if the Revocable Trust was not fully funded during lifetime, then the Pour-Over Will serves as a “safety net” by instructing the executor to transfer those assets to the Revocable Trust after the testator’s death. This ensures that all of the estate can be settled as a single, cohesive whole. However, like all Illinois wills, it does not avoid probate if the aggregate value of the assets passing by the will exceeds $100,000, or if there is any real estate. Therefore, it is very helpful that all assets be properly titled in the Revocable Trust during lifetime.

Will Requirements

In Illinois, a Will must be signed and witnessed with the following legal formalities to be valid:

  • The testator must be 18 years of age and of sound mind and memory.
  • The Will must be in writing.
  • The Will must be signed by the testator (or some other person on behalf of the testator in his or her presence and at his or her direction).
  • The Will must be attested in the presence of the testator by two or more credible witnesses who must also watch each other sign the Will. If a witness is also a legatee, then the gift to that legatee is limited to the amount he or she would have received had there been no will (under the laws of intestacy).

Common Myths About Wills

Here are some of the common myths about Wills:

Myth 1 - A Will avoids probate.

Only if the aggregate value of the assets passing by the Will are less than $100,000 and there is no real estate, otherwise probate is generally required. If real estate is located in other states, then ancillary probate may be necessary in each such state. The probate process can be burdensome both financially and emotionally to family and friends following death. In Illinois, the probate process takes no less than 6 months and typically 12 to 18 months to complete. During the first 6 months assets are generally frozen and distributions are allowed only by court order, since claims can be filed during this period.

Myth 2 - A Revocable Trust eliminates the need for a Will.

A Will is necessary to transfer items to the Revocable Trust if it was not fully funded during lifetime. In addition, guardians for any minor children are nominated under a Will.

Myth 3 - A Will takes effect upon incapacity.

A Will only has legal effect at death. Upon incapacity, agents under Powers of Attorney for Property and Health Care may be empowered to act, otherwise a Guardian must be appointed and a proceeding in guardianship court initiated.

Myth 4 - You can disinherit anyone, including your spouse, under a Will.

In Illinois, a testator can disinherit his children and almost anyone else. However, he cannot fully disinherit his spouse, unless both spouses have waived the right to be included in each other’s estate in an enforceable pre-nuptial or post-nuptial agreement. Each state has laws that shield a surviving spouse from being disinherited. In Illinois, the surviving spouse can choose between property left in the deceased spouse’s Will or renounce the Will and receive a statutory share, which is one-third of the entire probate estate if the Testator leaves a descendant(s) or one-half of the entire probate estate if the Testator leaves no descendant(s).

If a child is a minor, states typically provide an allowance to support the child until he or she reaches the age of majority. Many states also allow the court to award some support money to the surviving spouse.

Myth 5 - A Will is a private document.

Illinois requires that a Will be filed with the county in which the Testator resided, within 30 days of the death of the Testator. This is true even if probate is not required Once filed, the Will becomes a matter of public record and is available to anyone to review. Thus, it exposes the disposition of your assets, their value and the named legatees. A Revocable Trust, in contract, is a private document that cannot be viewed by the public.

Conclusion

A Will plays an important role in an estate plan. You should consider your particular circumstances and discuss with your attorney which type of Will may be best suited to your needs. We welcome the opportunity to discuss the use of a Will and other estate planning vehicles with you. Please contact any of our estate planning attorneys for assistance.