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What Are the Requirements to Execute a Valid Will and Other Estate Planning Document

Updated on
January 28, 2021
Article written by
Attorney Kevin O'Flaherty

In this article we will be discussing What Are the Requirements to Execute a Valid Will and Other Estate Planning Documents and we answer the questions of:

  • What is a Last Will and Testament?
  • What Does a Will Do?
  • What Are the Requirements to Have a Valid Will?
  • What Are Other Common Estate Planning Documents?
  • What type of Power of Attorneys are there?
  • What is a Power of Attorney for Property?
  • What are the Requirements of a Valid Power of Attorney for Property?
  • What is a Power of Attorney For Healthcare?
  • What are the Requirements for a Valid Power of Attorney for Property?
  • What Is the Requirement for a Valid Trust?
  • How Do I Have These Documents Notarized?
  • What Do I Have To Do With My Estate Planning Documents Once They Are In Effect?

Estate Planning Documents are legal instruments that help your family and the Court, in certain situations, determine how you would like your affairs handled when you are unable to manage on your own. Ideally, the planning documents you have created will ease a difficult time in your family’s lives. It is very important to ensure that everything is executed in the legally required manner or the documents will not be effective.

Read our recent article, Illinois Estate Planning in 2021 and Beyond, to learn more about recent changes to probate and estate administration law as of 2021.

What is a Last Will and Testament?

A Last Will and Testament is the most common estate planning document. A Will is a legal document that a testator (drafter) uses to outline their wishes as to what happens to their property upon their passing and who receives said property.

What Does a Will Do?

A will instructs the Court on how a person’s estate should be properly administered. A will allows the testator to choose how their property is distributed amongst any beneficiaries. If a person passes without a will their estate will be administered according to the statutory provisions in place at that time. Using a will allows for specific pieces of property, including money, to be directed to specific individuals. It can also expand or restrict the people that can inherit from the Estate, so long as it does not violate the provisions of the Illinois Probate Act.

What Are the Requirements to Have a Valid Will?

Illinois has very specific rules for what makes a will valid. Failure to meet these requirements will be a basis for the Court to invalid the Will and treat your probate estate as an intestate estate, which will follow the provisions of the Probate Act.

The will must have a statement of intent which explains that the will is meant to be the testator’s estate administration plan. To be valid a will must be signed by the testator and two non-interested witnesses. These signatures need to be notarized as well.

What Are Other Common Estate Planning Documents?

Other common estate planning instruments include Power of Attorneys for Property, Power of Attorneys for Healthcare, and various types of trusts. A power of attorney can authorize someone to make healthcare decisions or conduct business on behalf of a person. These documents are commonly used with older individuals to allow family members to assist in ensuring that bills are being paid and medical decisions can be made in timely manner.

Trusts are a larger and more complicated matter. To learn more about trusts please read our other article which discusses trusts in more detail. What is a Trust? | Illinois Trusts Explained

What type of Power of Attorneys are there?

There are two main types of Power of Attorney in Illinois. One is a Power of Attorney for Property; the other is a Power of Attorney for Health Care.

What is a Power of Attorney for Property?

A Power of Attorney for Property is the legal instrument which empowers a person to conduct the financial affairs of another. The principal (person enacting the power of attorney) will authorize an individual (the agent) to essentially stand in their shoes and access accounts, conduct business, and manage the principal’s financial affairs. Often people will appoint a power of attorney for property to ensure that their bills are being paid appropriately. A Power of Attorney for Property can be enacted to have a very broad authority and left in effect until cancelled or they can be made to be very limited for a specific purpose and timeline. It is entirely up to the needs and intentions of the principal.

What are the Requirements of a Valid Power of Attorney for Property?

A Power of Attorney for property must be signed in front of a qualified (disinterested) witness and a Notary Public to be valid.

What is a Power of Attorney For Healthcare?

A Power of Attorney for Healthcare is a legal document which authorizes an agent to make or instruct medical decisions for a principal in the situation where they are otherwise unable. The Power of Attorney for Healthcare has specific instructions which inform as to the treatment wishes of the principal. It is important to be clear on any instructions as your agent will be enacted these wishes in a situation where the principal is incapacitated. The Power of Attorney for Healthcare generally last until otherwise revoked but a time limit can be on the authorization if the principal wishes.

What are the Requirements for a Valid Power of Attorney for Property?

A Power of Attorney for Healthcare must be signed in front of a qualified witness. There is not a notary requirement for a healthcare power of attorney.

What Is the Requirement for a Valid Trust?

For a Revocable Trust to be valid in the State of Illinois it only needs to be signed by the principal. There is not a witness or notary requirement for executing trust documents. If you would like to learn more about trusts in the State of Illinois, please read our article reviewing trusts at What is a Trust? | Illinois Trusts Explained

How Do I Have These Documents Notarized?

A Will and Power of Attorney for Property need to be notarized. A Revocable Trust and Power of Attorney for Healthcare do not require a notary. Learn about recent changes to notary laws in regard to the coronavirus here.

What Do I Have To Do With My Estate Planning Documents Once They Are In Effect?

Once executed, the estate planning documents will instruct and authorize your agents and the Courts, if necessary, on how they should act in managing your affairs.


What Are the Requirements to Execute a Valid Will and Other Estate Planning Document
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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