In this article we explain how to create a will in Illinois. We answer the questions: “what is a will?”, “what is required for a will to be legally valid in Illinois?”, “what clauses should be included in a will?” and “do I need to work with an attorney to create a will?”
What is a Will?
A will is a legal document that sets forth the wishes of its creator (known as a “testator”) in the event of death. The purpose of a will is to be recognized by a probate court as the governing document for the management of the testator’s estate. (To learn more about probate, check out: The Illinois Probate Process Explained.) For this reason, not every document stating the wishes of a deceased individual qualifies as a will. In order to be recognized as valid by a probate court, the will must meet the legal requirements described below.
What is Required for a Will to Be Legally Valid in Illinois?
In order for a will to be considered valid in Illinois, all of the following must be true:
- The testator must have been 18 years or older when the will was executed;
- The testator must have been of sound mind when the will was executed;
- The testator must have signed the will in the presence of at least two witnesses who were also over the age of 18 and of sound mind at the time the will was executed; and
- The witnesses must also sign the will contemporaneously with the testator.
For more on this, check out: What is Required for a Will to be Valid in Illinois?
What Clauses Should Be Included in a Will?
Your will should, at a minimum include clauses that accomplish the following:
- Name Beneficiaries: Your will should provide for how you would like your assets distributed when you pass away. Be sure to account for contingencies, such as what happens if one of your named beneficiaries predeceases you. Generally, when you want assets to be distributed evenly among a class of beneficiaries, your will should not specifically name the beneficiaries in that class. For example, your will may state that you want your assets divided equally among your children that are living at the time of your death. Structuring the language in this way prevents you having to amend your will when life events such as births and deaths occur.
- Name an Executor: Your will should name an executor who will be responsible for collecting your assets and distributing them to creditors and beneficiaries according to the terms of your will. We recommend naming at least one or two successor executors who can serve as executor if the initial executor is not willing or able to do so at the time of your death.
- Name a Guardian for Minor Children: If you have minor children, be sure to name a guardian or a married couple to jointly serve as guardians should you be unable to care for your children due to disability or death. As in the executor clause, be sure to name successor guardians to serve should the initial guardians be unable or unwilling to do so.
Do I Need to Work With an Attorney to Create a Will?
While a will need not be drafted by an attorney to be legally valid, there are many reasons that working with an attorney is advisable:
- Having an attorney draft your will is not expensive: Wills are not difficult documents for attorneys to draft. Therefore you should not expect to pay a lot for an attorney to assist you in drafting a will.
- Attorneys help avoid ambiguities: An attorney will ensure that the terms of your will are not confusing and ambiguous. When your wishes are not clear, this can lead to disputes between family members and even costly litigation. It is harder than you might expect to eliminate ambiguous language when dealing with future unanticipated contingencies.
- Attorneys can ensure that your will is valid: If you draft a will without the assistance of an attorney you run the risk that a mistake will be made in its creation that will cause a court to find it to be invalid. As with ambiguities, this can lead to disputes between family members. It will also lead to your wishes as stated in the will not being realized.
- Attorneys can help you avoid mistakes regarding setting forth your wishes: As with ambiguities, mistakes tend to occur when dealing with future contingencies. Drafting errors can prevent your will from accomplishing its purpose.
- Attorneys can counsel your options: Depending on your individual circumstances and your estate planning goals, a Revocable Living Trust instead of or in addition to a will may be a more appropriate primary vehicle for your estate plan than a will. In some circumstances, neither a will or a trust may be necessary to achieve your goals. You may also want to consider ancillary documents such as Powers of Attorney and Living Wills. An attorney can make sure that your estate plan lines up with your particular needs. For more on this, check out our article: What Can I Accomplish With an Estate Plan?