Creating a will alone or as part of a larger estate plan can seem a big deal. But it is a fundamental task that without it, any wishes about how you want your assets to be distributed will not be known. If you die without a will, then the state will distribute your assets through the probate court process, paying off creditors first and then distributing the remainder in keeping with the Illinois rules of intestate succession as set forth in 755 ILCS 5/2-1.
The distribution will basically go to the spouse (if married) and children first in equal parts, meaning the spouse will get half and the children will get half, no matter how young the children are. This could be difficult for a spouse who is raising the children to not have easy access to half the funds. If there is no spouse or children, it would go to parents or siblings, certainly not to a life partner or significant other. The state will make the decisions about your debts and distribution of any assets that you may not like, again if you do not have a will.
If you haven’t yet made a will, set up some time to take care of this soon. As long as you are 18 or older, you can make your will.
What is a Will?
In short, a will (also known as Last Will and Testament) is a legal document that stands at the center of any comprehensive estate plan.
Upon an individual’s death, a will can serve in the following matters:
• Name a personal representative or an executor of the estate,
• Distribute the individual’s assets to beneficiaries,
• Pay debts,
• Designate the guardians of any minor children,
• Help fulfill any final wishes and/or funeral arrangements.
A Will Is Implemented After Death
The will only becomes active at the time of a person’s death once it’s filed with an Illinois probate court. It’s a list of instructions for distributing your assets and for other decisions you’ve made ahead of time, such as choice of an executor, funeral arrangements, and intended beneficiaries.
You can leave instructions about the choice of a legal guardian for your minor children (if the other parent is also deceased), arrangements for a disabled child or other dependent, and even designate who will care for any pets you may have. You can also use the will to specify who will not inherit such as an adult child with whom you have decided to exclude from an inheritance. A will cannot disinherit a surviving spouse.
A Will Must Go Through Probate and is a Public Record
A will needs to be filed with the probate court. At that point, the will becomes public, and the review and administration of your estate begin. If your will is kept private and secured until you die, no one will know the terms. That changes once the will is filed in court.
The probate court will assign an administrator to make clear who inherits the deceased’s property and to make sure valid debts and taxes are paid. It will verify the named executor and establish if the will is valid.
Although funeral arrangements can be outlined in your will, your family does not need to wait on the probate court to execute such arrangements.
A Will Is Not the Same as a Living Will
Your will is not the same as a “living will” sometimes called an advanced care directive, and known as a healthcare directive in Illinois.
A living will is a document that tells your health care professionals if you want death-delaying procedures when facing a terminal condition, especially important if you are incapacitated or otherwise unable to make informed decisions on your own. There are other types of directives you can make in advance of the possibility of becoming incapacitated, such as the power of attorney or a Do Not Resuscitate order. These are separate documents that can be created with the help of your attorney.
Not Everything Is Governed by Your Will
There are some things that do not get distributed by your will and therefore do not get delayed by the probate process, including:
• Life insurance and annuity proceeds
• Proceeds from retirement accounts, pensions, IRAs, and 401(k)s
• Bank accounts that are payable on death (POD)
• Property that is transfer-on-death (TOD), such as real estate, vehicles, stocks, bonds, etc.
Each of these will require you to name beneficiaries. It is always a good idea to review these types of items to ensure that the beneficiaries are still who you want. Former spouses, deceased spouses, and others may still be listed as beneficiaries that are no longer appropriate. Update them immediately to avoid problems later.
Other assets that don’t go through wills and probate include:
• Jointly owned assets and property that are co-titled with someone else
• Anything held in a trust
Trusted Estate Planning Attorney – James Provenza
You want to make sure that your will and estate plan do exactly what you need them to do without any challenges or interference from anyone. The best way to do that is to work with an Illinois estate planning attorney who understands the process and will make sure your estate is properly created, administered upon your death, and distributed as you intended. In the northern Chicago area, for estate planning advice from an experienced lawyer and tax planning professional, contact James Provenza.
James C. Provenza is an estate planning attorney and CPA in Illinois with more than 25 years of experience helping clients with their estate planning needs. He can work with you to create your will, design a comprehensive estate plan, and ensure that your final wishes are carried out as you intended. Call our firm today at (847) 729-3939, or use our online contact form.