ILLINOIS WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Illinois Probate Act, Art. 4 (755 ILCS 5/4-1, et seq.).
Trusts:ย Illinois Trust Code (750 ILCS 3/101, et. seq.).
Illinois Will Requirements.
A person making a will in Illinois (the โtestatorโ) must be at least 18 years old (or an emancipated minor) and of sound mind and memory.ย To constitute a valid will, a document must be in writing and signed by the testator at the end of the document.ย Text included beneath a testatorโs signature does not invalidate a will but is not considered part of the will.ย ย
As an alternative to the testatorโs personal signature, a third party may sign on behalf of the testator at the testatorโs request and in the testatorโs presence.ย Anyone signing for a testator cannot also be one of the witnesses to the will.
Along with the testator, an Illinois will must be signed by at least two credible witnesses.ย The signature of each witness must be observed by the testator and by the other witness.ย Witnessing by an interested party (i.e., someone who stands to benefit under the will) does not necessarily invalidate an Illinois will, but bequests to an interested witness are void to the extent the bequests exceed the value that the witness would had received if the testator did not have a will.ย Or, if the will is also signed by at least two additional credible witnesses who are not beneficiaries, a bequest to an interested witness is valid.ย ย
If a testator has previously been adjudged incompetent or had a plenary or limited guardian appointed to act on his or her behalf, the testator is presumed to have lacked capacity to create a valid will.ย The presumption can be rebutted by clear and convincing evidence of the testatorโs capacity at the time the will was executed.
Although an Illinois need not be notarized to be an effective testamentary document, a will is deemed โself-provenโ if it includes an attached notarized affidavit signed by the testator and two witnesses.ย The affidavit serves as evidence of the willโs authenticity and, if present, allows for admission into probate with no need for additional evidence of the willโs validity.
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Amendment, Revision, and Revocation of Illinois Wills.
Illinois wills may be amended or revised through execution of a codicil (an addendum to an existing will).ย To effectively amend a will, a codicil must satisfy all legal requirements applicable to the creation of a will.ย If a will is physically altered or edited after its execution, the alterations or edits are ineffective unless the will is again signed and witnessed in accordance with the same formalities required for the willโs initial creation.
An Illinois will may be revoked by execution of a later will which expresses the intent to revoke the prior will.ย Or, to the extent a subsequent will includes provisions which are contrary to provisions of an earlier will, the inconsistent provisions of the earlier will are considered revoked.ย A will may also be revoked by a separate written instrument which states the testatorโs intent to revoke the will and satisfies the formalities required for creation of a will.
Alternatively, an Illinois will is deemed revoked by the testatorโs โburning, cancelling, tearing or obliterating it.โย The destruction may also be accomplished by someone else acting for the testator, in the testatorโs presence, and at the testatorโs request.
If a testatorโs marriage is dissolved or declared invalid after the testator has executed a will, any devises or other provisions in the will relating to the former spouse are deemed to have been revoked.ย The will is otherwise valid and is treated as if the former spouse had died prior to the decedent.
If a testator has a child born after execution of the will, the child is entitled to receive a share of the estate equal to what the child would have received if the testator had not had a willโunless the will addresses later-born children or the will otherwise suggests an intent to disinherit the child.
Holographic and Oral Wills.
Neither oral (nuncupative) nor holographic (handwritten) wills are recognized under Illinois law.ย However, a will written by hand and signed by the testator and two witnesses, and which otherwise observes the legal formalities required for wills, is valid in Illinois.
Illinois Trust Requirements.
Illinois has adopted the legal approach to trusts provided under the Uniform Trust Code (enacted as the Illinois Trust Code).ย An Illinois trust must usually be embodied in a written trust instrument signed by the grantor. ย The grantor must have the legal capacity, and must express the intention, to create a trust. ย Oral trusts can be enforceable but only if the trustโs existence and terms are established by โclear and convincing evidence.โย ย ย
The trustee of an Illinois trust must have actual duties to perform, and a trustโs sole trustee cannot also be its sole beneficiary.ย Notwithstanding a few exceptionsโsuch as animal trusts, charitable trusts, and trusts granting a trustee power to choose beneficiaries from among a classโIllinois trusts must have at least one definite beneficiary.ย ย
The purpose of an Illinois trust can be just about anything that is not unlawful or in violation of public policy.ย The Illinois trust code expressly authorizes charitable trusts and trusts for the care of pets or other animals.ย ย
Trusts take effect under Illinois law upon transfer of title to property by a grantor to a trustee for a beneficiaryโs benefit; upon the grantorโs declaration that he or she holds property as trustee for someone elseโs benefit; or upon execution of a written appointment of a trustee.
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Small Estates Affidavit:ย If the total value of an Illinois estateโs assets is below $100,000 and all estate debts have been or will be satisfied, a representative of the estate can complete a small estates affidavit, allowing for streamlined administration without formal admission of the decedentโs will to probate.ย The small estates affidavit authorizes and directs any third parties in possession or control of estate assets to release or transfer the assets to beneficiaries as detailed in the affidavit.
Summary Administration:ย Summary administration is a simplified probate process allowed for Illinois estates not exceeding $100,000 in gross value.ย The process can be used if there are no unaccounted-for taxes or debts owed by the estate, and all beneficiaries consent to summary administration.ย When the simplified procedure is used, the executor is not required to file an inventory and accounting of estate assets with the probate court.ย Thus, summary administration partly alleviates the privacy loss usually associated with probate.
Illinois Estate Taxes:ย As of 2020, the federal estate tax only applies to estates valued over $11.58 million.ย In Illinois, though, an estate must complete an Illinois estate tax return if its gross value exceeds $4 million.ย For qualifying estates, the Illinois tax starts at 0.8% and progressively increases to as high as 16% for the largest estates.ย Illinoisโ $4 million estate tax exemption is not portable between spouses, though certain trusts (such as A/B trusts) can help to more efficiently use both spousesโ exemptions.
Transfer-On-Death (TOD) Instrument:ย Illinois law recognizes TOD designations on residential real estate deeds.ย A TOD must be signed by the real estate owner and two witnesses, notarized, recorded prior to death, and include the essential elements of an ordinary deed.ย If a TOD instrument is used, the real estate automatically transfers to the beneficiary upon the ownerโs death, with no need for probate.ย Illinois law also recognizes TOD designations on certain financial accounts.
Spousal Shares: Illinois law protects surviving spouses from disinheritance by guarantying a surviving spouse at least a one-third interest in a decedent spouseโs estate (one-half if the decedent does not have surviving descendants).ย If a decedent spouseโs will leaves the surviving spouse less than the guaranteed spousal share, the surviving spouse has the right to take the one-third interest in place of the inheritance that would have been received under the will.ย ย
In intestate estates, the surviving spouse of an Illinois resident who leaves no children inherits the decedentโs entire estate.ย If the decedent left descendants, the surviving spouse receives half of the estate, and the other half is divided among the decedentโs children.ย ย
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
