If you’re just beginning your estate planning, you’re probably thinking that you should start with a will. Without it, the state will take care of your affairs, and probably not in the way you might have wanted. This is especially true if your children are minors, and they could end up with relatives you would not have chosen.
A will saves your family and beneficiaries a lot of time and money, and potentially guards them from court battles over your estate with non-beneficiaries.
Unlike a trust, which can manage property in the years prior to your death, a will is activated at the time of death, and addresses three major points:
- Identifies your beneficiaries, or the individuals you designate to receive your property after your death
- The executor of your estate, who handles your final business affairs
- The guardians of any minor children you have at the time of your death
The will only controls those assets that are in your name, or in tenancy in common. A will is not applicable to assets that are held in trusts, accounts that are paid to a designated beneficiary (such as life insurance, pay-on-death accounts and retirement benefits) as well as anything in joint tenancy.
Types Of Illinois Wills
- Couple’s Wills—married couples have a few choices in how their wills are made together. There are several types, and these are the most common
- Joint Wills—this is a single will covering and signed by both parties, and names the surviving partner to inherit all assets. It also names the party or parties who inherit the estate after the passing of the surviving partner, who cannot make any changes.
- Mirror Wills—these are two different wills that are prepared for the couple, are reciprocal and leave everything to the surviving partner. In the event that both parties pass away at the same time, the beneficiaries are also named. Either party can make changes to their wills at any time.
- Mutual Wills—These are similar to mirror wills, but a surviving partner cannot make any changes.
- Trust Wills—these are based on trusts, and a trustee is appointed to take care of the will’s assets on behalf of the decedent’s beneficiaries according to the provisions set out in the will.
- Statutory Wills—small estates with limited assets can benefit from this simple will. It names an executor and the details of the estate’s assets. They are simple to execute, making it ideal for a smaller estate.
Other Forms Of Wills
- Small Estate Affidavit—for estates with less than $100,000 in assets but no real estate, a will and probate may not be necessary. A small estate affidavit can be used (along with a death certificate) to transfer assets directly to the beneficiary, such as a pay-on-death bank account. The individual who is requesting an asset provides basic information about the deceased, a will if available, states that there is no planned probate action, and that funeral and other expenses have been paid. This is a sworn statement, and signed under penalty of perjury.
- Living Wills—while not intended for probate purposes, a living will leaves instructions for medical treatment that will be administered to the testator should he or she lose their ability to communicate, such as respirators and feeding tubes.
We mention these types in the event that you may have considered using them. We advise against it, since they are not valid in Illinois.
- Holographic Wills—this will is one that is handwritten, dated, and signed by the person writing it (“testator”) without witnesses. It is not recognized in Illinois unless it meets the state law requirements for a will, or is created in a state that does recognize them. They are frequently challenged in probate court.
- Similar to a holographic will is a Nuncupative Will, which is a verbal statement made in front of witnesses, frequently when a terminally ill patient is unable to write. Like the holographic will, the nuncupative will is also not recognized by Illinois.
Although a will is just one part of estate planning, it’s one of the most important to ensure that everything is done according to your instructions after your death. Executing your will now ensures that your family is covered if you should pass away suddenly.
What Type Of Will Is Best For You?
With the different types of wills available, you may be wondering which one is the best for your estate needs. An estate planning attorney can work with you to determine which one to use to your advantage.
James C. Provenza is a leading Illinois estate planning attorney with years of experience helping clients with estate planning to make sure their wishes are carried out. Call our firm today at (847) 729-3939, or use our online contact form to make an appointment. We’ll help you decide which will fit best into your overall estate plan.
