Illinois Probate Act 755 ILCS 5/4-3: Signing and Attestation

A will is important to a comprehensive estate plan. A will allows the testator to make it clear to the world what he (or she) wants to happen to his property after death, including who should receive his personal property, real estate, bank account, and other types of property. However, in order for a will to be valid in Illinois, certain formalities must be followed. The will must be signed by the testator and witnessed. If the will has not been signed or attested to in a manner that is consistent with Illinois law, it will be invalid. To learn more about what is required under Illinois to a will to be valid, contact an experienced Chicago will lawyer.

Under the Illinois Probate Act, in order for a will to be valid it must have the following characteristics:

• It must be in writing
• It must be signed by the testator, or a the direction of the testator
• It must be witnessed by at least 2 people

It is important to understand that the signing and attestation requirements apply not only to a will, but also to codicils. A codicil is a legal document that changes the terms of a previously executed will.

A holographic will is one that is in the handwriting of the testator, is signed by the testator, but is not witnessed. An oral will is one that is spoken, but not written or signed. While holographic and oral wills are valid in some jurisdictions, they are not valid in Illinois because they do not meet the signing and attestation requirements.

As a Chicago will lawyer will explain, if a will was not signed or properly witnessed, it would not be valid. As a result, the probate court judge will not admit such a will to probate and will have to regard the decedent as having passed away without having created a will. When a decedent does not have a will, the probate court will appoint an estate administrator who will manage the estate and distribute assets based on the rules of intestate succession. Under intestate succession, a decedent’s property goes to his or her legal heirs. If the decedent has a surviving spouse and no descendants, then the decedent’s entire estate would go to him or her. If the decedent had both a surviving spouse and descendants, then the estate would be split between the spouse and the descendants with the spouse receiving 50%. If the decedent had descendants but no surviving spouse, then the entire estate would go to the descendants.

Relatives other than descendants would receive shares of the estate only if the decedent had no surviving spouse and no descendants. Furthermore, if it was the intent of the testator to leave property to non-relatives or charitable organizations, that would not be possible under intestate succession. In order to ensure that your will is drafted and executed in a manner that is consistent with Illinois law, contact an experienced will attorney in Chicago.

1. Capacity of testator: Illinois Probate Act, 755 ILCS 5/4-1
2. Beneficiary or creditor as witness: Illinois Probate Act, 755 ILCS 5/4-6

(a) 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.

(b) A will that qualifies as an international will under the Uniform International Wills Act is considered to meet all the requirements of subsection (a).

The consequences of failing to have a valid will is that the decedent’s wishes may not be honored. The individuals whom the decedent wanted to receive his property may not receive it. The best way to avoid this result is work closely with a skilled will attorney serving Chicago who will not only make sure that the terms of the will meet your personal goals, but who will also make sure that the will is executed according to Illinois law. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing individuals, executors, beneficiaries, and heirs in estate matters. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.