What is a Will?

Illinois Wills Explained | What is a Will?

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

What is a Will?

A will is a legal document by which its creator, referred to as the “testator,” expresses his or her wishes as to how his or her property is to be distributed at death, who should handle such distribution, and who he or she would like to be the guardian of any of his or her children who are minors at the time of death. The will should appoint an executor, the person named to manage the estate until its final distribution, is in charge of carrying out the testator’s wishes. Wills are incredibly important to have, because they allow you to communicate your wishes clearly and precisely.

What Can a Will Accomplish?

Wills generally cover four key points:

  1. Designation of an executor, who carries out the provisions of the will,
  2. Designation of beneficiaries, or those who are inheriting the assets,
  3. Instructions for how assets will be divided,
  4. Designation of guardians for any minor children.

What are the Legal Requirements for a Valid Will in Illinois?

In order for a will to be valid the creator of the will (known as the “testator”) must be at least 18 years old and of sound mind.  The will must be signed by the testator in the presence of at least two witnesses, who must also sign the will at that time.  

For more, check out: What is Required for a Will to Be Valid in Illinois?

Do I need an Attorney to Create a Will?

You are not legally required to work with an attorney to create a will, so long as the will meets the legal requirements for validity described above.  However, working with an attorney is advisable to avoid ambiguities and mistakes in drafting that can lead to disputes and even costly litigation between family members after your passing or to the probate court refusing to recognize it.  

In addition, an attorney can counsel you as to whether a will is the best option to achieve your estate planning goals (see: What Can I Accomplish With an Estate Plan?).  An attorney can discuss other estate planning strategies such as Revocable Living Trusts, Powers of Attorney, and Living Wills that may help you effectuate your wishes better than or in addition to a will.    

For more, check out: How to Create a Will in Illinois.

How to Update a Will in Illinois

A will can be updated by drafting a supplementary document called a Codicil that indicates which parts of the will are being changed and sets forth new language for such sections.  In cases where many parts of the will are being changed, it may make sense to create an entirely new will, which revokes the previous will.  

For more on this, check out: How to Update a Will in Illinois.

How to Revoke a Will in Illinois

There are several ways to revoke an Illinois will, including destroying the will and all of its copies, executing a new will that either contradicts or explicitly revokes the previous will, or executing a separate will revocation document in the same manner as the original will.  

For more, check out: How to Revoke a Will in Illinois?

Will Your Estate Avoid Probate if You Have a Will?

Probate is a court case that is often necessary to give a deceased individual’s loved ones the legal power to collect his or her assets and distribute them to estate beneficiaries.  Avoiding probate is one of the primary benefits of having a good estate plan.  It is usually preferable to arrange for your estate to avoid probate.  Probate is costly, it delays the distribution of assets to your loved ones, and it can be stressful and time consuming for your loved ones.  Simply having a will does not cause your estate to avoid probate.  However, probate can be avoided by using a Revocable Living Trust as the primary vehicle of your estate plan instead of a will.

For more, check out: Can You Avoid Probate by Having a Will in Illinois?

If I Have a Trust, Do I need a Will?

In some situations, if you use a Revocable Living Trust as your primary estate planning document a will is unnecessary.  Like a will, a trust can provide for the distribution of your assets after you pass and name a trusted individual to manage this process.  However, a revocable living trust will not allow you to name a guardian for minor children.  For this reason, we usually recommend that individuals with minor children have a will in addition to their trust.  

Even if you don’t have minor children, a will in addition to your trust may be appropriate as a safety net just in case you make a mistake in transferring assets to your trust, which may cause probate to become necessary when you pass.  If you own any real estate or more than $100,000.00 in other assets outside of your trust when you pass, probate may be necessary even if you have a trust.  In these cases, all of the assets owned by the trust will still avoid probate, but all of the assets that are not owned by the trust or payable on death accounts will go through the probate process.  Having a will in addition to your trust can allow your wishes as stated in your trust to control how the assets that go through probate are handled. This is important if your wishes for the distribution of assets differ from how state law would require them to be distributed in the absence of a will.  

To learn more about this, check out our article: Is a Will Necessary if I Have a Trust?

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What Can a Will Accomplish?

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