A Will is a legal document where an individual lists who receive their property upon death. Those who inherit your property in a Will are called beneficiaries. The person making the Will is called the testator. The individual who you choose to manage your estate is called the executor.
Other items that are included within a Will are guardianship for minor children and funeral preferences.
Upon your death, your estate is handled by probate court. The court will honor your Will if one exists and is proven valid, or without a Will, the court will apply state law to determine who inherits what property.
The primary reason for writing a Will is for you to decide what happens to your property after your death instead of courts, attorneys, and relatives fighting in a courtroom with laws and state statutes, a court battle that could last for years and cost your own children thousands of dollars in court costs and legal fees.
With a Will, you decide who gets your property. Without a Will, the court decides.
Even if your estate is simple, without a Will, the court could still take control of your property regardless of how small a family you have and the amount of property you own.
The Illinois state statute that applies to Wills is titled 755 ILCS 5 Article IV.
Criteria for a Valid Will
Every Will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses. (Note: The witnesses cannot also be beneficiaries).
The statements of a witness to prove the Will may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the Will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the Will or is attached to the Will or to an accurate facsimile of the Will.
Inheritance without a Will
The Illinois statute that applies to inheritance without a Will is titled 755 ILCS 5 Article II. (Note: the word decedent refers to he/she who is deceased).
(a) If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent's descendants per stirpes.
(b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent's descendants per stirpes.
(c) If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.
(d) If there is no surviving spouse or descendant but a parent, brother, sister or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living.
These are the most common scenarios. There are specific rules about what happens with children born out of wedlock, under what circumstances a grandparent or great-grandparent would inherit property, and adopted children.
The two most important reasons why you should have a Will is to avoid other people making decisions for you and also to make the process simple for your relatives. After your death, it is your friends and family who are responsible for wrapping up your estate. This process can become very costly, time-consuming, frustrating, and unpredictable without a Will.